Audit, Compliance and Risk Blog

If you are an employer and are considering using suspension as a disciplinary measure, be aware that the Supreme Court of Canada has indicated that employers do not have unfettered authority to withhold work from their employees and that legitimate business reasons must be shown in the context of any administrative suspension. Absent such reasons, an administrative suspension—even with pay—may be found to be a constructive dismissal.

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The Occupational Safety and Health Administration (OSHA) recommends that all employers create and maintain plans for dealing with emergency conditions. In particular, some OSHA standards require employers to create an emergency action plan (EAP) as part of their compliance programs.

Even if your organization is not required to do so, you should consider the benefits or being prepared to conduct emergency responses and evacuations. Well-developed emergency plans and proper employee training (so employees understand their roles and responsibilities) likely will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies. A poorly prepared plan, on the other hand, likely will lead to a disorganized evacuation or emergency response, exacerbating confusion, injury, and property damage.

Which Employers Require An EAP?

The following OSHA Standards require you to prepare an EAP as part of your compliance with their requirements:

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The reality is that suicide rates in the U.S. have gone up considerably in recent years, claiming an average of 36,000 lives annually.¹ While most suicides take place at, or near, a person’s home, suicide on the job is also increasing according to federal researchers. The Bureau of Labor Statistics reported that workplace suicides rose to 282 in 2013 reaching the highest level since the numbers have been reported by the occupational fatality census. In 2014, the suicide rate went down slightly to 271, which is the second highest level since the records have been kept. The annual average number of suicide deaths that occurred at work during the time period 2003 – 2014 is 237. Between 2003 and 2014 there were a total of 2,848 suicide deaths that occurred at work.² The rise in suicide rates at work is even more significant when taken in the context that overall homicides in the workplace have been steadily decreasing since the mid-nineties.

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Effective February 16, 2016, the U.S. Federal Motor Carrier Safety Administration (FMCSA) has revised the requirements for logging of commercial motor vehicle (CMV) drivers’ hours of service or “HOS.” A motor carrier operating CMVs must install and require each of its drivers to use an electronic logging device (ELD) to record the driver’s duty status no later than December 18, 2017.

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Employees in the health care and social service sectors suffer workplace violence at much higher rates than in most other sectors, largely because of the higher risk from their patients and clients. In response to these risks, worker protection agencies and professional organizations have developed guidelines for workplace violence prevention in these sectors. Increasingly, worker protection laws and regulations are being revised to require these activities. Most recently, in December 2015 California has proposed to expand state requirements for security plans to include explicit workplace violence prevention programs.

Existing Requirements For Security Plans

California adopted hospital security plan requirements in 1993. Since 2010, these require state-licensed hospitals to implement security plans, including all of the following actions: Read More

The Occupational Safety and Health Administration (OSHA) requires most employers to prepare and maintain records of occupational injuries and illnesses (I&I Logs) as they occur. OSHA also requires employers to post an annual I&I Summary in each “establishment” within their workplace by February 1, summarizing that workplace’s I&Is during the previous calendar year. Delegated state-run programs impose comparable requirements.

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Every winter, employee and public health officials around the world prepare for influenza (“flu”) seasons, which vary from mild to the occasional pandemic. Here in the U.S., the Centers for Disease Control and Prevention (CDC) issue annual forecasts of the strain(s) expected to be dominant, the severity of resulting health impacts, and of the availability and efficacy of vaccinations.

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It’s exceedingly difficult to predict workplace violence, and there is no easy solution to stop it altogether, however, reference checking is a preventative step that employers can take to reduce the risk. I would add that, in my professional opinion, many workplace violence incidents could be prevented if employers took the necessary precautions before an incident actually unfolded.

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In 1989 OSHA issued “Safety and Health Program Management Guidelines” (S&H Guidelines), recommending activities employers should undertake to ensure their employees’ safety and health. The S&H Program Guidelines encourage employers to institute and maintain an “effective occupational safety and health program.” Some state occupational safety and health regulators have used these (voluntary) guidelines as the basis for mandatory employer programs – including California’s Injury and Illness Prevention Program (IIPP) requirement and Washington’s Accident Prevention Program (APP) requirement. OSHA proposed a national rule in 2012, but after several delays has designated it a “long term action.”

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The US Environmental Protection Agency (EPA) administers a Worker Protection Standard (WPS) designed to protect workers exposed to agricultural pesticides. WPS is patterned after the Occupational Safety and Health Administration (OSHA's) Hazard Communication Standard (HCS) for workers in most other industrial and commercial settings. EPA adopted the WPS in 1992, and just adopted its first revisions late in September 2015. Some of these changes incorporate revisions to HCS adopted by OSHA in 2012 (see here), while others catch up on two decades of industrial hygiene and worker safety practices. The revisions will appear in the Federal Register (probably in November) and become effective 60 days later. Compliance deadlines extend for up to 2 years for the various changes.

What Does WPS Require Now?

I summarized longstanding WPS requirements when I blogged last year about EPA’s proposed revisions (click here ). To further summarize my summary, WPS requires employers whose employees work with or around pesticides to provide the following:

• Pesticide safety training

• Labeling information

• Specific information including pesticide-specific training within 5 days after beginning work (“grace period”), supplementing immediate emergency information and a pesticide safety poster

• Requirements to keep workers out of areas being treated with pesticides, within nurseries and greenhouses (“buffer”)

• Requirements to keep workers out of areas during a restricted-entry interval (REI) set for each pesticide

• Protect early-entry workers doing permitted tasks in pesticide-treated areas during an REI, including special instructions and personal protective equipment (PPE)

• Required warning to nearby workers about pesticide-treated areas (oral and/or warning signs, depending on the chemical)

• Monitor handlers using highly toxic pesticides, at least every 2 hours

• Provide required PPE to handlers (e.g., clothing, respirators)

• Provide decontamination supplies

• Provide for emergency assistance.

Some requirements apply on behalf of all agricultural workers who may be exposed, plus additional requirements for pesticide handlers who work with regulated pesticides.

What Changes is EPA Adopting?

EPA has adopted a wide variety of revisions, including provisions that have changed significantly from last year’s proposal. Revisions include:

• Training (compliance deadline delayed for 2 years):

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