Tressi Cordaro, Principal - Arkansas Trucking Association · 2017. 9. 25. · ©2016 Jackson Lewis P.C. Tressi Cordaro, Principal Jackson Lewis P.C. | Washington, DC Region . [email protected]

©2016 Jackson Lewis P.C.

Tressi Cordaro, Principal Jackson Lewis P.C. | Washington, DC Region [email protected] | 703-483-8336

mailto:[email protected]


Focus on compliance assistance? Shy away from new regulations?

• Recently rescinded interpretation that employees at a non-union

worksite could elect to have a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections

• Public statements suggest that Acosta will focus on job training

• Expected to roll back or delay regulations, such as silica and beryllium

• Elimination of public shaming tactics except in the most egregious

cases

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Electronic Submission - Employers with 250 or more (includes part-time, seasonal,

and/or temporary workers) in each establishment to electronically submit their 300, 300A, and 301 forms to OSHA annually

- Employers with more than 20 but less than 250 employees in certain identified industries to electronically submit their 300A form annually

- Employers who receive notification from OSHA to electronically submit their 300, 300A, and 301 forms to OSHA

OSHA will post the data from employer submissions on a publically accessible website – not to include an information that could be used to identify individual employees

Employers required to develop employee injury and illness reporting requirements – employers must inform employees of the following: • Procedures for reporting work-related injuries and illnesses

promptly and accurately - employees must not be deterred or discouraged from reporting

injuries and illnesses (reasonable reporting procedures are required)

• Employees have the right to report work-related injuries and illnesses

• Employers are prohibited from discharging on in any manner discriminating against employees for reporting work-related injuries and illnesses

Post-accident drug testing • “should limit post-accident testing to situations in which

employee drug use is likely to have contributed to the accident and for which the drug test can accurately identify impairment caused by drug use”

Incentive Programs

• Be careful that program doesn’t incentivize underreporting – e.g. bonus for team of employees if no one is injured over defined period of time vs. bonus for employees participating in safety committee

Disciplinary programs are not prohibited. But can’t use discipline or threats of discipline for reporting injuries or illness. • Cannot discipline employees simply because they report work-related

injuries or illnesses without regard to the circumstances of the injuries or illnesses

• E.g., automatically suspending workers who report an injury or

assigning them points that have future employment consequences.

• Cannot discipline employees under the pretext that the employee violated a work rule if the real reason for the discipline was the injury or illness report.

• E.g., employer disciplines an employee who reported a work-related

injury for violating a work rule, but fails to enforce the work rule against other employees who violate the same rule but do not report an injury or illness.

• OSHA is pursing whistleblower cases on this issue.

Be careful that program doesn’t incentivize underreporting – e.g., bonus for team of employees if no one is injured over defined period of time.

If an employee reports an injury or illness, and is subsequently denied a benefit as part of an incentive program, this may constitute retaliatory action.

OSHA indicates determinations will be made on a case-by-case basis.

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Programs based on lagging (injury reporting) as opposed to leading indicators (safety promoting activities) problematic.

Incentive programs should encourage safe work practices and promote worker participation in safety-related activities • Participating in a safety committee • Performing a safety audit • Engaging in corrective actions • Preventative maintenance schedules • Identifying hazards, close calls, or near misses • Successful completion of safety and health training

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Best practices:

• Reward safety behaviors rather than no injuries.

• Include several safety behaviors as components of your safety incentive and bonus program.

• Stress preventative actions versus reactive actions.

• Avoid taking away rewards merely because someone reports an injury.

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November 1, 2016

Provisions regarding employee injury reporting policies – “anti-retaliation” provisions

Specifically, requirements to inform employees they have a right to report a work-related injury

Prohibition from discharging or otherwise discriminating against employees for reporting work-related injuries or illnesses

Employers can comply with these requirements by posting the “OSHA It’s the Law” poster – April 2015 or newer

January 1, 2017 Requirements relating to the electronic submission of Part 1904 recordkeeping forms Establishments with ≥ 250 employees must submit information from their 2016 form

300A by July 1, 2017 Establishments with ≥ employees but < 250 employees in designated industries must

submit information from their 2016 form 300A by July 1, 2017

January 1, 2018 Establishments with ≥ 250 employees must submit required to submit information from

all 2017 forms (300A, 300, and 301) by July 1, 2018 Establishments with ≥ employees but < 250 employees in designated industries must

submit their 2017 form 300A by July 1, 2018 Establishments with ≥ employees but < 250 employees in designated industries must

submit their 2017 form 300A by July 1, 2018

Beginning in 2019 and every year thereafter Information must be submitted annually by March 2

Three ways to submit information: • Web form (manual submission), • Batch file (form and format information will

be announced in November) • Electronic transmission via application

program interface (API).

Portal now available – submissions due December 1, 2017



Effective January 17, 2017 Align general industry with construction and update

standards to reflect current national consensus standards

Covers all places of employment in general industry It does not change construction or agricultural standards Rule incorporates advances in technology, industry best

practices, and national consensus standards Updates general industry standards addressing slip, trip,

and fall hazards and adds requirements for personal fall protection systems

Definition: any horizontal or vertical surface on or through which an employee walks, works, or gains access to a work area or workplace location

Requires protection from fall hazards at 4 feet above a lower level.

Requires fall protection in specific situations, such as hoist areas, runways, dockboards, areas above dangerous equipment, wall openings, repair pits, stairways, scaffolds, and slaughtering platforms.

Establishes requirements for the performance, inspection, use, and maintenance of personal fall protection systems.

Guardrails • Barrier erected along an unprotected or exposed side, edge • To prevent workers from falling to lower level

Safety Nets • Horizontal or semi-horizontal, cantilever-style barrier • Uses netting system to stop falling workers before making contact

with lower level or obstruction

Personal Fall Arrests • System which stops a fall before worker makes contact with lower

level • Consists of body harness, anchorage, and connector • May include lanyard, deceleration device, lifeline, or combination • NOTE: Final Rule prohibits use of body belts as part of a personal

fall arrest system

Positioning System • System of equipment and connectors used in combination with a

body harness or belt which allows worker to be supported on an elevated vertical surface – e.g. wall, window sill – while working with both hands free

Travel Restraint System • Combination of anchorage, anchorage connector, lanyard and body

support • Eliminates possibility of worker going over unprotected edge or side

of walking-working surface

Ladder Safety System • System attached to a fixed ladder • Designed to eliminate or reduce possibility of worker falling off

ladder • Usually consists of carrier, safety sleeve, lanyard, connectors, and

body harness • Cages and wells are NOT considered ladder safety systems

General requirements • Clean, orderly and sanitary • Inspected regularly and maintained in a safe condition

Ladders • Regular inspections • Grasp with at least one hand at all times • Step bolts – inspected at start of each shift


Less than 6 feet from the edge requires a guardrail, net system, travel restraint or personal fall arrest

More than 6 feet but less than 15 feet requires a

designated area if work is infrequent and temporary, if not full fall protection

15 feet or more does not require protection if infrequent

and temporary and employer has a work rule instructing employees to maintain 15 feet, if not full fall protection

The final rule defines ‘‘designated area’’ as ‘‘a distinct portion of a walking working surface delineated by a warning line in which employees may perform work without additional fall protection’’ (final § 1910.21(b)). The definition of designated area is similar to the construction standard’s ‘‘warning line system,’’ defined as a barrier erected on a roof to warn employees that they are approaching an unprotected roof side or edge, and which designates an area in which roofing work may take place without the use of guardrail, body belt, or safety net systems to protect employees in that area (§ 1926.500(b)).

[A] warning line ‘‘serves to warn and remind employees that they are

approaching or working near a fall hazard by providing direct physical contact with the employee. The contact attracts the employee’s attention, enabling the employee to stop in time to avoid falling off the roof’’ (59 FR 40672, 40689 (8/9/1994)).

Dockboard - a portable or fixed device that spans a gap or compensates for a difference in elevation between a loading platform and a transport vehicle. • Examples: bridge plates, dock plates, and dock levelers. Can be

powered or manual.

Must be capable of supporting maximum intended load • Workers, equipment, vehicles, tools, materials and other “reasonably

anticipated loads”

Grandfathers existing dockboards – DO NOT have to replace or retrofit dockboards currently in use

If put into initial service (for the first time) after January 17, 2017 • Must have run-off protection, guards or curbs • If in compliance with ANSI MH14.1 -1987, MH30.1 – 2007 or MH30.2

– 2005 considered in compliance


If no hazard of running off dockboard edge, can eliminate run-off protection • Revised in response to comments from ATA • Consistent with national consensus standards which require guards for

openings that exceed 36 inches • No specific size opening that constitutes a run-off hazard in standard –

case by case basis (factors – type and size transfer vehicle) Portable dockboards must be secured in place

• Anchor them or use devices or equipment to prevent moving out of a safe position

• If infeasible, must ensure there is sufficient contact between dockboard and surface to prevent movement out of safe position

Measures (chocks, sand shoes etc.) must be used to prevent transport

vehicle from moving while dockboards are in place Portable dockboards must be equipped with handholds or other means to

permit safe handling of dockboards


Employees on dockboards must be provided fall protection if fall hazard of 4 feet or more

Guardrails or handrail systems Not required if:

• Dockboards are used solely for materials-handling operations using motorized equipment (i.e., forklifts); and

• Employees engaged in those operations are not exposed to fall hazards greater than 10 feet; and

• Employees have been trained in fall hazards


OSHA defines ‘‘rolling stock’’ as any locomotive, railcar, or vehicle operated exclusively on a rail or rails, or a trolley bus operated by electric power supplied from an overhead wire. ‘‘Motor vehicle’’ means any commercial bus, van, or truck, including tractor trailer, flatbed, tanker, and hopper trucks.

No specific fall protection requirements for motor vehicles or rolling stock

“This final rule does not include any specific requirements for fall protection on rolling stock and motor vehicles and OSHA’s current existing enforcement policies on rolling stock and motor vehicles will remain in effect”

1996 Letter of Interpretation, revised in 2009 • “The enforcement policy of the Agency, consequently, is that falls

from rolling stock also will not be cited under Subpart D.” • “Additionally, it would not be appropriate to use the personal

protection equipment standard, 29 CFR 1910.132(d), to cite exposure to fall hazards from the tops of rolling stock, unless employees are working atop stock that is positioned inside of or contiguous to a building or other structure where the installation of fall protection is feasible.”

• General Duty Clause if there are feasible means to abate • Erickson Air Crane

- Employer did not have notice of any duty to use fall protection equipment or provide the related training with respect to its tanker truck

“OSHA believes the evidence employers and industry associations submitted shows it is technologically feasible in many cases for employers to provide fall protection for rolling stock and motor vehicles regardless of their location”’

“OSHA still believes that additional information and

data analysis is needed in order to determine an appropriate course of action”

Mobile ladder stands, platforms, wheels and casters under load must support 4x maximum intended load, plus proportional share of unit’s weight

Meet specified design criteria, including slip-resistant surfaces Stands and platforms with wheels or casters must have

system to impede horizontal movement when occupied, and may not be moved when employee is on it

All ladder stand platforms with platform height above 10-feet must have guardrails and toeboards on exposed sides and ends of platform

Removable gates or non-rigid members, such as chains, may be used on mobile ladder stand platforms instead of handrails/guardrails in special-use applications

Usually consist of side rails joined at intervals by steps, rungs, or cleats May be self-supporting or lean against supporting structure Employers must ensure that:

• rungs and steps are corrugated, knurled, dimpled, coated with skid-resistant material or treated to minimize possibility of slipping

• When used on slippery surfaces must be secured and stabilized • Stepladders and combination ladders used as stepladder must have metal spreader or

locking device to secure when in use • Ladders may not be loaded beyond maximum intended load, must be used only on

stable and level surfaces (unless secured or stabilized to prevent displacement) • No portable single rail ladders may be used • No ladder may be moved, shifted, or extended while a worker is on it • Ladders may not be placed in passageways, doorways, or driveways where they could

be displaced unless secured, or guarded by temporary barricade • Cap and top step of a stepladder may not be used as steps • Top of non-self-supporting ladder must be placed so both side rails are supported

unless it has a single support attachment • Portable ladders used to gain access to upper landing surface must have side rails

extending at least 3 feet above landing surface • Ladders/sections cannot be tied or fastened together to provide added length unless

designed for this, and ladders cannot be placed on boxes or other unstable bases to obtain additional height


Covers all types (standard, spiral, ship, alternating tread-type stairs) except those serving floating roof tanks, scaffolds, and those designed into machines or on self-propelled motorized equipment

Must provide handrails, stair rail systems, and guardrail systems

Stairs must have uniform risers and tread depth between railings

Spiral, ship or alt-tread stairs used only when infeasible to use standard stairs, and installed, used and maintained in accordance with manufacturer’s instructions

Standard stairs must also meet specs if installed after January 17, 2017


Training compliance date May 17, 2017 Final rule adds training requirements for employers whose

employees use personal fall protection and work in other specified high hazard situations

Training must cover fall and equipment hazards, including fall protection systems

Trainer must be qualified person Information and training must be given to each worker in manner the

worker understands (language and vocabulary) Provide training BEFORE EXPOSURE to hazards Additional training must be provided following change in workplace

operations or equipment, when beneficial or if worker demonstrates a lack of knowledge or skill

Documents

Tressi Cordaro, Principal - Arkansas Trucking Association · 2017. 9. 25. · ©2016 Jackson Lewis P.C. Tressi Cordaro, Principal Jackson Lewis P.C. | Washington, DC Region . [email protected]