Worker suffocated in December 2009 after being engulfed in grain

Federal OSHA has fined the South Dakota Wheat Growers Association of Aberdeen, S.D., more than $1.6 million following the Dec. 22, 2009, death of a worker at the company’s McLaughlin, S.D., grain handling operation. The worker suffocated after being engulfed by grain in one of the facility’s bins. OSHA’s investigation found that five additional workers were also at risk of being engulfed when they were sent into the bin to dig the victim out.

“The South Dakota Wheat Growers Association ignored long-established standards addressing safety in grain handling operations,” said Secretary of Labor Hilda L. Solis. “The company’s intentional disregard for its safety and health responsibilities put its workers at risk, and more egregiously, led to an unnecessary loss of life. Worker safety must be a top priority.”

Following its investigation, OSHA proposed $1,610,000 in fines for 23 alleged willful violations of the grain handling and confined space standards, including: failing to prohibit workers from walking on top of clumped grain; failing to prohibit entry into the grain bins where the buildup of grain existed; failing to shut off and lock out equipment to prevent grain from moving through the bin while workers were inside; failing to equip workers with grain engulfment protection; failing to provide observers equipped to provide assistance; failing to train workers; failing to issue permits to control entry into grain bins; failing to test the atmosphere; a lack of rescue equipment; and failing to implement an emergency action plan prior to entry. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to employee safety and health.

“We know that safety precautions could have prevented this tragedy,” said Dr. David Michaels, assistant secretary of labor for OSHA. “The dangers of grain bin entry are well known in the industry, yet the South Dakota Wheat Growers Association chose to ignore these hazards.”

The death in South Dakota follows a similar May 2009 death of a 17-year old employee of Tempel Grain LLP in Haswell, Colo. That worker also suffocated after being engulfed by grain. OSHA issued $1,592,500 in fines for 22 alleged willful and 13 alleged serious violations in that case.

OSHA has implemented a regional emphasis inspection program in the grain handling industry to address the serious hazards associated with grain bins and confined spaces, and operators and industry associations have been sent letters announcing the program. OSHA’s area offices covering Colorado, Montana, North Dakota and South Dakota are also providing assistance to help grain storage facilities comply with safety standards.

Does not being able to get to work determine lost or restricted days?

Scenario:  An employee is injured at work and work relationship is established for recordkeeping purposes. The employee is now not able to drive himself to work. The employee may have a cast or splint on, arm in a sling, using crutches, or leg immobilized, etc. The employer has work the employee could do if the employee could get to work. The employee stated he was not able to drive. Prior to the injury, the employee drove himself to work every day. He was not in a car pool, or didn’t catch a ride with co-workers, etc.

Questions: Would this case be a days away from work case or a restricted work activity case?
If the employer provided transportation (even though not required by the regulation to do so), could the company count the days as restricted or must they still count the days as days away from work?
 Would the answer be the same if the employee’s doctor wrote a restriction of “no driving” but the company says “the employee can get a ride with someone else, we have work available”?

Answer: The case must be recorded in a manner reflecting what actually occurs. If the employee does not make it to work, the case must be recorded as a case involving days away from work. If the employee is driven to work by the employer, or anyone else, and the employee performs restricted work, the case must be recorded as a case involving restricted work activity.

What happened to the good old days when fundraising meant a bake sale, car wash, or an auction of items gifted by parents, grandparents, or friends?

There is a new craze in town and people are using “Duct Tape” as a fundraiser.  Right now you are asking yourself, “Duct Tape”?  What can one possibly do with duct tape to raise money?  Duct tape has over 1000 uses; it is quite possibly one of the greatest inventions of our time.  However, young adults taping themselves and teachers to ceilings, walls, and anything else that it will stick to just doesn’t seem like a very good idea to us. 

First, we would like to explain how this fundraising is done, and then we will delve into its harmful/harmless aspects. It is usually done at colleges and schools with teachers as the victims (volunteers).  A few items are required: duct tape, garbage bags, scissors, release forms, chairs, flyers for the event, volunteers, and a wall that is secure enough to hold the people being taped.  The first thing to do is find a wall that will be secure enough to tape the victim to.  A drywall wall is not recommended - the best walls to use would be brick or concrete.  You will need to test the wall to see if it will hold.  The volunteers can use a substitute object for the test.

Once the wall has been tested, you are ready to make a garbage bag suit.  You will cut holes in the top and sides of the garbage bag.  The victim puts his head and arms through the holes and wraps his arms and legs with strips of the garbage bag. This will protect the clothing and skin of the individual. 

After your volunteer is in their garbage bag suit, you begin to sell the duct tape.  It can be sold by the foot, yard, or by the roll.  The more duct tape you sell, the more money is to be made.  So, you have your volunteer, you have sold your duct tape, now comes the fun part of taping your victim to the wall.

Using a chair, the victim should be placed in the middle of the chair with the tapers on either side.  Then using five to ten rolls of duct tape per victim, strap the victim to the wall.  If you are taping someone to a ceiling, it gets a bit tricky and again we would not recommend this.  You need three volunteers holding the person up on the ceiling while another one or two are taping.  The key is to make sure you use enough duct tape.  Before you start taping, you should have sold at least five to ten rolls for that one person.  The larger the person the more duct tape.  Does this sound like fun?  While maybe fun, it could be harmful.

The procedure described above is the correct way of doing this fundraiser.  However, there are many people out there who are not following the procedures necessary to maintain safety. Using duct tape on bare skin can cause a myriad of issues. The first would be a “waxing effect”, which in itself can cause irritation, redness, and blisters, not to mention pain.  What if that person has an allergy to duct tape?  We are thinking that taping someone to a wall or ceiling would not be a good time to find this out. 

Secondly, people are occasionally taped too tightly. This can cause panic attacks, shallow breathing, cutting off circulation, and even possibly death.

Thirdly, the plastic in the garbage bag suit can cause profuse sweating which can lead to dehydration, loss of electrolytes, and possibly death.

Lastly, there is the issue of not using enough duct tape and having that person fall from a height of three feet or even worse from an eight foot ceiling. The injuries sustained could range from sprains, broken limbs, and in some cases death.  There is also the possibility that the volunteers could be injured from the falling victim as well.

Now we are not saying that this is a good way to raise money.  We know that when we were in school there were a few teachers who we would have loved to tape up, especially their mouths.  But we do feel that if you are going to use this as a fundraising event, please make sure that all your ducks/or duct tape (injection of a little humor) are in a row.  Test the person you are going to tape for allergies. Use the garbage bags as a suit to protect the victim’s clothes and skin. Make sure not to tape the person too tightly. Above all, check on the person while they are taped to the wall. Give them fluids. Never ever tape their mouth or nose and don’t put them at heights where if they could fall they would be hurt.  The key to making money and having a little fun is not to injure someone, or God forbid, get someone killed.

How often do you visit a construction site and see electrical tape on extension cords?  The question always comes up: “Is it an OSHA violation?”  Recently OSHA issued two new letters on April 4, 2010 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27353 and April 12, 2010 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27356  Both of these letters state that the cord in question can be repaired as long as it is repaired back to its original “approved” state. 

However, one must understand what is the original “approved” state?  According to OSHA, the definition for “approved” (29 CFR1926.449) is:
“Acceptable to the authority enforcing this subpart.  The authority enforcing this subpart is the Assistant Secretary of Labor for the Occupational Safety and Health.”

Under this same section of the standard, the term “Acceptable” is defined as:
(a) If it is accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a qualified testing laboratory capable of determining the suitability of materials and equipment for installation and use in accordance with this standard; or
(b) With respect to an installation or equipment of a kind which no qualified testing laboratory accepts, certifies, list. Labels or determines to be safe, if it is inspected or tested by another Federal agency, or by a State, municipal, or other local authority responsible for enforcing occupational safety provisions of the National Electrical Codes, and found in compliance with those provisions; or
(c) With respect to custom-made equipment or related installations which are designed, fabricated for, and intended for use by a particular customer, if it is determined to be safe for its intended use by its manufacturer on the basis of test data which the employer keeps and keeps available for inspection to the Assistant Secretary and his authorized representatives.

Cords are approved as a complete whole factory item based on their design, capacity, materials, and construction. The use of electrical tape changes the design, capacity, materials, and construction; therefore, to be approved it must be sent out to a qualified testing laboratory to ensure that it still meets the requirements as it was designed to be an “Approved” Cord.

So, in short, hold the electrical tape and go buy a new drop cord.

OSHA issued an enforcement memorandum on April 28th telling compliance officers to check how employers are training non-English speaking workers on safety. 

The memorandum states that OSHA requires employers to teach employees in a language that they understand.  This is really not anything new.  However, this memorandum also states that if the employee’s vocabulary is limited the training must account for that limitation.  This statement will most likely create many more questions than it does answers.  In addition, the document goes on to say that if employees are not literate, telling them to read training material will not satisfy the employer’s training obligation. 

“This directive conforms with Secretary Solis’ clear and urgent goal of reducing injuries and illnesses among Latino and other vulnerable workers,” said Dr. David Michaels, the OSHA assistant secretary. “These workers represent an integral and essential part of the key industries that keep our country running every day.”

Several OSHA standards require employee training, and it is well understood that training should be provided in formats and languages that workers comprehend. Companies that offer training aids and materials typically offer products in multiple languages, particularly in Spanish for the U.S. market, but also in French, German, Portuguese, Arabic, Hindi, Italian, Chinese, Dutch, and more. The memo says compliance officers should check and verify that training was provided in a language and vocabulary that the workers could understand.

Scenario: An employee sustained a work-related ankle injury (sprain) and received medical treatment. The employee immediately returned to work with restrictions. The employee’s doctor has requested that the employee return for periodic office visits so that he can observe the patient’s improvement. The employee’s doctor states that on the days the employee has an appointment, the employee is “unable to work that date.”

Question: Are the days used by the employee to visit the doctor for follow-up to be considered days away from work?

Response: The days the employee did not work because he needed to travel to his doctor’s office for observation of the injury should not be counted as days away from work on the OSHA log. As long as the employee was physically able to perform his restricted duty job, and the doctor’s recommendation not to work on the days in question was made solely to ensure that the employee was free to keep the appointment for observation, you would count the time as restricted work activity.

Following suit with the Director of OSHA David Michael’s desire to increase the monetary portion of OSHA penalties, the agency announced on April 22nd that it will increase the average cost of both serious and willful violations and make it much more difficult for employers to receive reductions in their penalties. 

In the next few months, only employers who have had an inspection in the previous five years (it was three years) and not received a serious or stronger citation will be granted the 10% good history reduction in fines.  On the flip side, if an employer has received any “high gravity” serious or worse citations in the last five years, they will now see a 10% increase in fines.   OSHA offices will now only be able to offer a 30% reduction in fines though an informal conference settlement agreement.  An interesting addition to this rule is if the employer agrees to hire an outside safety consultant, then the area director is authorized to grant an additional 20% reduction in fines.

In the April 22nd press release Dr. Michaels states: “For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA’s requirements. Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees.”

The new Severe Violator Enforcement Program (SVEP) will focus OSHA enforcement resources on “recalcitrant” employers who endanger workers by demonstrating indifference to their responsibilities under the law. This could be any employer receiving a willful, repeat, or
failure-to-abate violation based on certain criteria. This supplemental enforcement tool includes increased OSHA inspections in these worksites, including mandatory OSHA follow-up inspections and inspections of other worksites of the same employer where similar hazards and deficiencies may be present. SVEP will become effective within the next 45 days. For more information, visit http://www.osha.gov/dep/svep-directive.pdf.

“SVEP will help OSHA concentrate its efforts on those repeatedly recalcitrant employers who fail to meet their obligations under the Occupational Safety and Health Act. It will include a more intense examination of an employer’s practices for systemic problems that would trigger additional mandatory inspections,” said Michaels.

The current maximum penalty for a serious violation is $7,000 and the maximum penalty for a willful violation is $70,000. The average penalty for a serious violation will increase from about $1,000 to an average $3,000 to $4,000.  If passed in its current state, the Protecting America’s Workers Act would raise these penalties to $12,000 and $250,000, respectively. For more information on the new penalty policy, visit http://www.osha.gov/dep/penalty-change-memo.pdf.

In the press release, Dr. Michaels goes on to say: “OSHA enforcement and penalties are not just a reaction to workplace tragedies. They serve an important preventive function. OSHA inspections and penalties must be large enough to discourage employers from cutting corners or underfunding safety programs to save a few dollars.”

Company Sponsored Meal

Scenario: To celebrate a safety milestone of achieving one million hours worked without an injury, your employer provides a lunch complete with fried chicken, barbequed ribs, hamburgers, and all the trimmings.  A few hours later many employees start to exhibit signs of food poisoning.   Seventy two of your employees get food poisoning so bad that they must miss the next day of work. Further investigation reveals they received the food poisoning from the potato salad provided by the caterer your company hired for the event.

Question: Do all seventy two of these cases go on your OSHA 300 log as recordable with at least one day away from work (DART case)?

Answer:  A note to the exception involving geographical presumption makes clear that if an employee becomes ill as a result of ingesting food contaminated by workplace contaminants such as lead, or contracts food poisoning from food items provided by the employer, the case would be considered work-related. As a result, if an employee contracts food poisoning from a sandwich brought from home or purchased in the company cafeteria and must take time off to recover, the case is not considered work related. On the other hand, if an employee contracts food poisoning from a meal provided by the employer at a business meeting or company function and takes time off to recover, the case would be considered work related. Food provided or supplied by the employer does not include food purchased by the employee from the company cafeteria, but does include food purchased by the employer from the company cafeteria for business meetings or other company functions.

The U.S. Consumer Product Safety Commission, in cooperation with Fluke Corporation announced a voluntary recall of the Fluke VoltAlert® Voltage Detector. Consumers should stop using recalled products immediately unless otherwise instructed.

There are about 33,000 units involved in this recall. The testers can fail to give an indication of live voltage, resulting in the operator falsely believing the electrical power is off, posing a risk of serious injury or death from electrical shock or thermal burns.

The Fluke voltage testers look like a pen with a yellow, white and gray body. The testers measure 90 to 1000 volts alternating current (VAC). “Fluke” and the model number are printed on the front of each unit. The recall involves Fluke 1AC-A1-I VoltAlert® tester with the following model and item numbers:
1AC-AI FLUKE-1AC-I VoltAlert Voltage Tester

These items are sold at Industrial distributors and electrical wholesalers nationwide from September 2009 through February 2010 for about $25.

Consumers should stop using the recalled product immediately and contact Fluke for a free replacement. For additional information, contact Fluke toll-free at (888) 983-5853 between 7 a.m. and 4 p.m. PT Monday through Friday or visit the firm’s Web site at www.fluke.com/1AC-A1recall.

Federal OSHA has cited the Allen Family Foods Inc. poultry processing facility in Harbeson Delaware for exposing workers to a variety of workplace safety hazards. Proposed penalties total $182,200.

OSHA initiated an investigation on Sept. 9, 2009, in response to a referral made by Maryland Occupational Safety and Health after numerous serious and willful violations were issued at a similar processing facility in Maryland.

OSHA has cited the company with 45 serious violations and proposed a penalty of $182,000, and two other-than-serious violations with a proposed penalty of $200. The serious violations address hazards with industrial trucks, falls, personal protective equipment, machine guarding, electrical hazards, process safety management, respirators and emergency response.

“It is vital that the company abate these hazards as quickly as possible to ensure that safety and health of workers at that facility are not at risk,” said Domenick Salvatore, director of OSHA’s Wilmington, Del., office.

The Maryland inspection netted three proposed “willful” violations involving Lockout/Tagout and machine guarding.  Proposed penalties of $109,750.