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According to a report released October 2009 by the Government Accountability Office, one third of the occupational health practitioners polled feel pressure to reduce the amount of medical treatment they give to injured workers in order to reduce their employers' number of recordable injuries.  The health practitioners reported that this pressure comes from both employers trying to reduce workers' compensation costs and OSHA recordables, and employees trying to maintain safe-work incentives.  Designing programs that promote productivity along with safety are some of the most difficult challenges faced by occupational health professionals and management.  The statistics from this study point out the need to re-evaluate work-safe incentive programs and highlights the need for greater communication between management, workers and health practitioners.  While excessive medical treatment should not be encouraged, it must be made clear that prudent and satisfactory treatment be given to injured workers and that all injuries regardless of how minor should be reported.  It is the duty of management to clearly communicate to workers that they will not be punished for seeking medical treatment for injuries sustained while at work or for reporting unsafe or unhealthful working conditions.  Profit and incentives may be an inseparable part of business but they should not come at the expense of worker health.

I continue to notice that many companies allow employees to wear respiratory protection (typically dust masks) on a voluntary basis.  That is, the dust mask (filtering face piece) is not required by the company or Cal/OSHA for worker health, but the worker desires to wear one for his/her own protection.  This has led to misconceptions by both employees and employers regarding the regulatory requirements.  In fact, many employers think there are no regulatory requirements for those who wear a dust mask and that it is purely the responsibility of the employee.  There are specific requirements that are being overlooked by employers in the voluntary use of dust masks.  When dust masks (or any respirator) are provided for voluntary use, the employer must first of all determine that respiratory protection is not necessary to protect the health of the employee.  That is to say, the employer must evaluate or monitor the potential exposure and determine whether there is not a need for respiratory protection or other controls to protect worker health. The employer must also determine that the respirator will not itself create a hazard and the respirator is certified (by NIOSH) for use to protect against the contaminant of concern.  A written respiratory protection is not required when employees voluntarily use dust masks, but each user must be provided with and sign a copy of the information contained in Appendix D ("Information for Employees Using Respirators When Not Required Under the Standard") of the Cal/OSHA Standard (8 CCR § 5144).  Bottom line: Don't allow your employees to wear even dust masks on a voluntary basis until you have done your due diligence.

We were recently reminded that "mold happens" when you least expect it.  Old roofing, plumbing leaks and failing window seals can all result in moisture intrusion that accumulates on or in building materials.  Sometimes a leak is not detected until water begins to drip from the ceiling or wall, at which point material deterioration and mold growth may have already progressed.  We have found that the key to preventing and minimizing such problems
is quick response to the moisture condition, aided by having a moisture/mold response plan in place prior to the leak event.

Federal OSHA has recently proposed adding a column for musculo-skeletal disorders (MSDs) to the Injury & Illness Log (Form 300), which it had proposed once before in 2001, but was not included in the final recordkeeping changes that were adopted with that rulemaking effort.  The proposed rule change, which can be viewed at www.dol.gov/federalregister/msdcolumn, would simply require employers to place a check mark in a designated column at the far right side of the form for each MSD they record according to the definition proposed by OSHA (which is identical to the definition they proposed in 2001).  MSDs are currently included in the "other injuries" column.  OSHA believes that including the MSD column on the injury log will improve the accuracy and completeness of national occupational injury & illness statistics, provide valuable and industry-specific information to assist in the agency's efforts to address workplace MSDs, and provide useful establishment level information that will help employers and employees readily identify the incidence of these types of injuries.  We agree that this minor change in recordkeeping would be a good thing since it would be consistent with Cal/OSHA's Ergonomics Standard which requires tracking ergonomic injuries to determine if a written plan is required.  Some employer groups are adamantly opposed to this proposal because they see it as the first step in a revised effort by OSHA to promulgate an ergonomics standard (not an issue in California).  But since that effort has failed in the past and is sure to meet with strong resistance for the foreseeable future, this small modification in the process for recording injuries does not appear to place a burden on employers and should only lead to further understanding of the problem.

Now that Director of Cal/OSHA Len Welsh has former Fed/OSHA Deputy Regional Administrator Chris Lee onboard as his new Deputy Director, will the Cal/OSHA program change?  Fed/OSHA has traditionally ran its program differently than Cal/OSHA.  Though there have been complaints about Cal/OSHA operations from time to time, it is undisputable that Cal/OSHA has always been very open regarding its operations and proposed regulations.  In my years of experience with Cal/OSHA I have found District and Area Managers to be a pleasure to work with, always readily open for discussion.  Only time will tell and I certainly don't want to pass judgment based on his first few months on the job.

That said, I must pass along a story.  Briefly, one of our clients received quite a few citations following a site inspection.  We met with Cal/OSHA concerning the classification of several of these citations.  Subsequent to numerous lengthy conversations with the inspector, district manager and area manager, a settlement was reached.  No one is ever completely happy with these types of negotiations; everyone wants their pound of flesh, which I think was accomplished.  The settlement was then taken to Mr. Lee for final approval.  His final decision was to deny the settlement and have his staff go to hearing.   I was clearly shocked as was the Cal/OSHA staff.  The basis for Mr. Lee's decision is unknown, particularly in light of the fact that all affected parties were on board with the settlement.  It is quite possible his decision was influenced by Fed/OSHA's current scrutiny of the Cal/OSHA program.  Whatever the reason, I hope we don't see Cal/OSHA changing its way of doing business. Cal/OSHA remains one of the premier safety and health programs in the country and I hope its open and pro-active approach with employers and labor continues unchanged.  If anyone has had similar experiences, we would love to hear about them.  Please email us at admin@thecohengroup.com.

Post-script:  Just before publishing this blog, Cal/OSHA and the employer finally reached a settlement the night before the hearing.  Many Cal/OSHA representatives worked very late with the employer attempting to achieve the final settlement.

The Cal/OSHA Standards Board is holding a public hearing on February 18 to discuss proposed changes to the General Industry Safety Orders concerning hot pipes and hot surfaces.  The current regulation states that pipes and surfaces that are hot enough to burn human flesh on momentary contact, and are within seven vertical feet of the floor or 15 inches from stairways, ramps or fixed ladders must be covered with insulation material or guarded against contact.  The proposed changes specify the temperature for the pipes that require insulation or guarding at 140 degree Fahrenheit.  I looked at several studies about the temperatures at which human skin will burn.  Among the studies, 140 degrees Fahrenheit appeared to be the general temperature at which momentary contact with skin would produce a burn.  The increased detail in the proposed changes will help employers who were questioning how hot they could allow surfaces to get before needing to make changes.  For more information on the proposed changes follow the link: http://www.dir.ca.gov/OSHSB/Hot_Surfaces.html

Cal/OSHA is proposing to consolidate the vast majority of its portable ladder standards into one section (section 3276) which would apply to general industry and construction.  One of the proposed provisions that we find most interesting requires that portable ladders be inspected by a competent person prior to the start of the work shift. There have been several comments by representatives of general industry and construction that the inspection provision would force employers to inspect all of its ladders for every shift at each facility - a rather burdensome task, particularly if the ladder is not being used.  In addition documenting that the inspections were performed would require significant paperwork.  While there may be merit to requiring the inspection of portable ladders, the requirement of a pre-shift inspection of a ladder by someone other than the user, particularly if it is not to be used, would be impractical, infeasible and burdensome to enforce.  It will be interesting to see how the Standards Board will respond to this proposed change.  To read all of the proposed changes click the link and feel free to call our office for more information. http://www.dir.ca.gov/oshsb/Portable_Ladders.html.  A summary of all the proposed standard changes for portable ladders will be presented in our upcoming February 2010 Current Issues newsletter.

You may recall that about a year ago we reported on concerns that were raised regarding lead contamination in the fibers (grass blades) used in some artificial turf athletic fields.  The limited testing completed at that time identified elevated levels of lead in some artificial turf materials made of nylon and nylon blends, as well as in the "turf dust" collected primarily from older, nylon-based fields that were deteriorating.  The CDC examined the available evidence and concluded that the risk for harmful lead exposure from the fields was low as long as the artificial turf containing the lead was relatively new. 

In response to a recent client request, we revisited this issue to determine what new assessments, if any, have been done since mid-2008 to confirm or dismiss the notion that playing on artificial turf surfaces could pose a health risk.  We found that the Consumer Product Safety Commission (CPSC) had performed limited testing and concluded that young children are not at risk from exposure to lead by ingestion from synthetic athletic fields.  We also learned that New York City had tested 111 synthetic turf fields and found elevated lead levels in the crumb rubber used at just one field.  But we found no other recent studies of lead release or lead exposure associated with artificial turf. 

Another concern that has been raised is the possibility of harmful exposures from the constituents of the crumb rubber infill materials that are used as artificial "soil" for the turf materials.  We will summarize this research in our upcoming Current Issues Newsletter scheduled for release in February.  Please call or e-mail us if you have any questions regarding this issue.

The US Consumer Product Safety Commission (CPSC), the US Environmental Protection Agency (EPA) and a half dozen more government agencies have partnered to investigate if homes constructed with drywall from China present potential health and safety hazards.  Briefly, the issue is that CPSC began receiving complaints in late 2008 from consumers of odors emanating from the drywall of their newly constructed homes.  They were also noticing corrosion of metal items, particularly air conditioning coils and electrical connections.  The reports first surfaced in Florida, but CPSC now says there are over 30 states reporting similar problems, including California and Arizona.  Generally, home builders use domestically-produced drywall, but the housing boom of 2003 to 2006, as well as the reconstruction work after the Hurricane Katrina disaster, caused a surge in demand which could not be met by the domestic suppliers.  Thus, drywall started to be imported.  The CPSC has become the lead agency in the investigation.  As of a couple of weeks ago, CPSC stated that no firm conclusions have been reached, but some issues initially thought to be the problem have been ruled out.  The industrial hygiene community is also pooling its resources to review studies independently conducted by some of its members.  If one can stay clear of the newspaper articles that seem to sensationalize the problem, we suggest you use the CPSC website (www.cpsc.gov) to stay apprised of the current research.  We are also participating in a white paper on the subject, so feel free to contact us for the latest information.

In a previous blog posting we mentioned that the Cal/OSH Standards Board was reviewing changes to fixed ladder regulations in the General Industry Safety Orders 3277.  The proposed changes took effect on November 21, 2009.  The changes clarify cage extension regulations when a ladder base ends on a surface that is greater than 30 inches off the ground.  The issue was raised after a fatal fall occurred on a ladder that terminated on an elevated platform/walkway.  Any death in the workplace must be a trigger to question established workplace practices and safety procedures.  The changes to the fixed ladder regulation will help make workplace environments safer.  Examine your facilities to see if there are any ladders that fall under new regulations and make the necessary changes.  If you have any questions or comments please call or email our office.

We recently discussed OSHA's proposed rule to align the existing hazard communication standard with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  As part of the major overhaul of its hazard communication rule and specifically material safety data sheets, OSHA is proposing to delete the requirement of including the American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Values (TLVs) on Safety Data Sheets (SDS).  Acting OSHA Administrator Jordan Barab had gone on record, stating the proposed GHS from OSHA will reduce chemical-related injuries, illnesses and fatalities - but will it, if indeed the TLVs are removed?  The American Industrial Hygiene Assocation (AIHA) and California Industrial Hygiene Council (CIHC) have sent letters to OSHA, supporting in general, the adoption of GHS, however requesting that TLVs be included.  Much of the professional safety and health community have long valued TLVs as excellent scientific guidelines in the control of health hazards for many chemical and physical agents.  Though the ACGIH is not a standard setting body, its TLVs reflect current knowledge, based on existing published, peer-reviewed scientific literature.  OSHA is proposing that permissible exposure limits (PELs) would be the only required chemical and physical agent exposure limits on SDS.  It should be noted however, that many OSHA PELs have not been updated in many years and do not reflect current scientific information.  In setting PELs, OSHA is required to include economic and technical feasibility which is not done with the TLVs.  We believe that removing TLVs from SDS would remove a valuable tool for protecting worker health and safety.  We encourage OSHA to reconsider and keep the TLVs part of SDS information.  Mr. Barab will be in San Francisco at the Annual CIHC Conference in December and it is likely this will topic will be discussed.

Coccidioidomycosis (more commonly known as Valley Fever) is a lung infection resulting from inhalation of dust containing fungal spores of Coccidioides immitis, endemic to soil in desert areas such as the San Joaquin Valley of California.  We recently worked on a case involving an individual who contracted coccidioidomycosis while living and working in a non-desert area of California.  Our investigation, including a review of regional incidence data, indicated that coccidioidomycosis occurs in every non-desert as well as every desert region of California, but that the incidence in non-desert regions is very low.  The incidence in non-desert regions is presumed to be the result of exposures occurring in other regions and/or from fungal spores transferred in soil from other regions (e.g., on vehicles, animals or clothing).  Know that if a concern is raised about Valley Fever, the incidence of the disease is tracked by the California Department of Health Services and various county health departments.  In this particular case, the county in question had only 0.9 cases per 100,000 population in one year, while Kern County ("ground zero" for Valley Fever in California) had 145.7 cases per 100,000 in the same year.

OSHA recently announced a proposed rule to align the existing hazard communication standard with the provisions of the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  Acting OSHA Administrator Jordan Barab touted the proposed changes as improving the consistency and effectiveness of hazard communications and reducing chemical-related injuries, illnesses and fatalities.  But, if adopted, will the revised standard result in those claimed safety improvements?  It certainly will be an improvement to have standardized MSDSs that are consistent with those produced in other parts of the world, but manufacturers and producers will still have to provide the information required by the forms and it is likely that large, multi-national corporations will continue to do a much better job of producing MSDSs with much more complete and higher quality data than small companies.  But will a "harmonized" standard eliminate poor quality MSDSs?  Information on container labels may also be improved and made more consistent under the new rule, but will it be enough of an improvement to result in reduced injuries and illnesses when handling hazardous chemicals?  We all know that the safe handling practices utilized by employees are only as good as the information and training (and enforcement) provided by their employers.  There is much to think about when considering the changes that the proposed GHS alignment will bring about.  While we wholeheartedly support the long-needed programmatic improvements that the proposed hazard communication standard modifications will produce, we still are dubious that the changes will result in a significantly lower rate of chemical-related injuries and illnesses.  What do you think?

Not surprising, and certainly as we predicted, the proposed changes to the Heat Illness Standard did not receive a warm welcome from the Standards Board at their October 15 meeting. Farm workers were paraded in front of the board complaining about their work conditions.  One Board member correctly noted that, if conditions are 'that bad,' it was an indication that employers are not complying with the existing standard and a new standard would have little impact.  DOSH is very opposed to convening an Advisory Committee to address changes to the standard for the simple fact that consensus can not be achieved. So the situation remains unchanged.

On another front, AB838, the bill that would require Cal/OSHA to adopt a Heat Illness standard for indoor environments, was vetoed by the Governor, who took the same position two years ago when the same bill (AB1047) was placed on his desk.

Overall, our take is that a Cal/OSHA Heat Illness standard makes sense for the Ag industry and Cal/OSHA's own statistics demonstrate that need.  If Cal/OSHA wants a standard it can more easily defend, then limit its scope to Ag.  Until then, the current standard will remain problematic for Cal/OSHA and employers.  With that said, however, the standard sits in the General Industry Section of the rules, which means it applies to all "outdoor workers" regardless of industry.  We strongly encourage all employers to amend their Injury and Illness Prevention Programs to include provisions for compliance with the Heat Illness rule, EVEN if outdoor work is a collateral duty. Be sure the procedures are clear and specific.  Let us know if you need help.

The National Institute for Occupational Safety and Health (NIOSH) has identified comprehensive research on hazardous exposures to firefighters as a strategic goal.  NIOSH plans to "characterize firefighter exposure and exposure routes for elements, chemicals and particulates, and develop evidence-based interventions based on field studies," with an emphasis on smoke inhalation.  The potential contaminants in smoke vary widely, based on the materials that are combusted.  Rumor has it that NIOSH has invited the San Francisco Fire Department to participate in the study.  We believe this will be an important and interesting study for the entire health community, as the knowledge gained will likely assist in evaluating the potential hazards of smoke inhalation in other occupational and non-occupational settings.

There is much uncertainty regarding the H1N1 influenza virus.  No one can predict right now whether the upcoming fall and winter flu seasons will result in large outbreaks of severe illness from the H1N1 virus (including hospitalizations and death) or whether the influenza cases that develop will more resemble the typical seasonal flu that we have all become accustomed to dealing with each year.  The Centers for Disease Control and Prevention (CDC) agrees and they recommend that employers should plan to be able to respond in a flexible way to varying levels of severity and then be prepared to refine their pandemic influenza response plans if a potentially more serious outbreak of influenza evolves during the fall and winter.  To this end, the CDC has released new guidance with recommended actions that non-healthcare employers should take now to decrease the spread of seasonal flu and 2009 H1N1 flu in the workplace.  In particular are very good recommendations to encourage frequent hand washing and covering coughs and sneezes among employees, and to regularly perform routine cleaning of commonly touched surfaces to reduce transmission of the virus.  For a great deal more information on the H1N1 virus, see the excellent website www.flu.gov.

We have recently received requests to assist clients with preparations for the likely flu outbreaks this fall and winter.  For example, we are currently performing fit testing of respirators for San Mateo County health professionals as they prepare to respond to a possible pandemic and are helping another organization prepare their pandemic flu response plan. We might suggest similar actions by those who may deal with people who are ill or work in close working quarters.

Cal/OSHA has published a new (yes, again) proposed change to the existing Heat Illness Standard (Section 3395).  The 'new' proposal is very similar to the three proposals rejected by the Standards Board a few months ago.  It again includes much of what was published by Cal/OSHA in its 12-page Heat Illness Q&A document (previously discussed in our Newsletter and Blog).  Although I am in favor of a heat illness standard and believe there is ample justification for such a standard, at least for the agriculture industry, I am not sure whether it makes sense as a 'general industry' standard.  A single heat illness standard to fit all circumstances may be the problem, although I believe there is sufficient pressure on the Standards Board to adopt this latest version.  Since virtually all of the health-related issues we hear about seem to occur in Agriculture, why doesn't Cal/OSHA write a Heat Illness Standard for Ag?  After all, isn't Ag used as the justification for the standard in the first place?

Looking at this latest version, it appears action must be taken when temperatures reach 85 degrees.  I do not favor establishing trigger temperatures like we establish PELs; it just doesn't make sense since there are so many other heat-related factors that must be considered, e.g., humidity, work/rest regimen, acclimatization, clothing, etc.  Also, 'hot' in San Francisco is not 'hot' in Fresno.  With that said, there is much that is good about the new standard.  For example, the new standard has increased training requirements and now requires supervisors to encourage their crew to stay hydrated.  I believe it is unfortunate that Cal/OSHA doesn't expand their criteria for employer action to use a temperature/humidity/sun exposure criteria rather than a 'one size fits all' standard based on a temperature that lacks scientific justification.  Such a change would make more sense when evaluating a farm worker in Fresno who may be in full sun with high temp and low humidity verses a construction worker in San Francisco who may be working outdoors in shade, with high temp and high humidity.  Oh well, we will all stay tuned in until this issue is resolved at the October 15 Standards Board meeting.  For more information on the proposed standard, visit http://www.dir.ca.gov/oshsb/Heat_Illness.html. 

With that said, we would love to hear your comments.  Please forward them to admin@thecohengroup.com

We just heard (9/3/09) the selection of John Howard, M.D., as the new Director of the National Institute for Occupational Safety and Health (NIOSH); he'll assume his new role on September 8, 2009. Dr. Howard is not new to this role; He served as the Director of NIOSH from 2002 through 2008 after leaving Cal/OSHA as its Director.  He also served as Coordinator of HHS' World Trade Center Health Programs from 2006 to 2008.  He will again assume a dual role, and serve as the World Trade Center Programs Coordinator for HHS.  We all welcome John back to this position; his support was widespread.  He is the perfect choice.

We cannot wait to hear what John has to say about the appointment process and what's on tap for NIOSH in the coming years - If you haven't heard, he will be the keynote speaker at this year's CIHC Conference in San Francisco.  See the description and link to the CIHC Conference on our website.

As discussed in our May 2009 newsletter, the way we use noise reduction ratings (NRR) for specifying Hearing Protection Devices (HPD) may soon be changing.  On August 5, 2009, the EPA published a proposed rule substantially changing the testing requirements and the methods of computing and using NRR (subpart B of 40 CFR 211).  Under the proposed regulation a new HPD rating system will be used.  It will still be known as the NRR but it will reflect changes in HPD that have evolved since the EPA promulgated the current standard in 1979.  The new rating system will present a range of expected protection as opposed to the single number NRR value, which as we discussed in the newsletter article has come under much criticism over the past 30 years.  If the EPA rule is passed it may affect the evaluation of hearing protection attenuation that is prescribed in the Cal/OSHA Occupational Noise Standard (Title 8, CCR Section 5098  and Appendix E, Methods for Estimating the Adequacy of Hearing Protectors).  According to section 5098, hearing protection attenuation must be evaluated according to the methods described in Appendix E.  Some of these methods may change with the adoption of the pending EPA rule.

According to the EPA the proposed revisions will "provide more accurate, uniform and user-friendly information to all potential purchasers, users and hearing conservation professionals so they can make informed comparisons of product performance."  Hearing protector testing and labeling will reflect current ANSI standards that were established in 2008.  The proposed rule would require recurrent testing for all product categories covered by the regulations to provide a comparison of effectiveness ratings of a product over a period of time and to ensure that labels accurately reflect current effectiveness.  The EPA is accepting public comments through November 4, 2009.  The proposed rule can be accessed at www.regulations.gov.  We will keep you informed of any upcoming developments.

Industrial hygienists are frequently asked to assess current employee exposures to toxic substances during typical or "worst case" work activities and work place conditions.  Such assessments are most commonly performed through air monitoring, with concurrent observations of the details of the work.  In addition, industrial hygienists are often asked to determine exposures to individuals that may have occurred sometime in the past and must utilize methodologies other than direct air monitoring to complete the assessment.   See our upcoming newsletter article "Determining Individual Exposure to Toxic Substances" for information regarding the wide range of information and factors considered in providing a meaningful exposure assessment.

Cage extensions are the main focus of proposed changes to section 3277 concerning fixed ladders.  Cal/OSHA began looking at the changes after a worker fell off a ladder platform and died.  The proposed changes include requiring cage extensions down to the guardrail when a ladder terminates on a platform or walkway that is greater than 30 inches off the ground.  Proposed changes also include definition clarifications and information on how the cage extensions must be built.  To read all of the proposed changes click the link and feel free to call our office for more information:  http://www.dir.ca.gov/OSHSB/fixed_ladders_proptxt.pdf 

President Barack Obama announced last week that he will nominate epidemiologist David Michaels, Ph.D., MPH, to be the Assistant Secretary of Labor for OSHA.  Dr. Michaels is currently a research professor in the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services.  He previously served in the Clinton administration (1998-2001) as Assistant Secretary of Energy for Environment, Safety and Health, which included managing worker health and safety issues at federal nuclear weapons facilities.  Reportedly Dr. Michaels has conducted numerous studies on the health effects of occupational exposure to toxic chemicals and has written extensively on science and regulatory policy, including the 2008 book "Doubt is Their Product: How Industry's Assault on Science Threatens Your Health."  To no one's surpsrise the nomination has been applauded by labor, academia and professional H&S organizations, while the response from industry groups has been less enthusiastic. 

Dr. Michaels' presentation at the June AIHA Conference paralleled his book, which I am confident will become a best seller once confirmed by Congress.  As is quite evident from the title of his book, Dr. Michaels has an ax to grind with industry research.  This was also made clear in his presentation at the AIHA Conference where he had no difficulty in naming names.  The premise of the book is that industry or the consultants hired by industry do not do 'real' research, but rather place doubt on the research done by others to delay the inevitable decision by government to ban or change how a product is handled by the public.  This may be a template of how Dr. Michaels may regulate business once confirmed.  Perhaps it may not be all that bad if we can get OSHA off the dime on updating PELs, Silica, HazCom, Noise in construction and several other regulations that have been sitting dormant for years.  Hold on, this may be a bumpy ride!! 

Frequent visitors to our blog know that we have been tracking Cal/OSHA's Heat Illness Standard for many weeks.  The latest on the standard is that on June 18, 2009 the Cal/OSHA Standards Board rejected emergency amendments to the standard (Title 8 CCR 3395).  The emergency revisions offered by the Division were opposed by both labor and management.  We think everyone recognized that putting a band aide on something that requires major surgery would be unacceptable.  Similar to the 85 dB Action Limit for noise, Cal/OSHA attempted to establish Action Limits on Heat such as setting 85^oF as a "trigger" to require employers to provide shade.  Labor is concerned that the amendments don't go far enough and may weaken the standard, whereas management feels the standard is confusing and lacks adequate enforcement.  The Standards Board may address this again at the July meeting in Los Angeles.  However Cal/OSHA is redrafting portions of the text to the address the concerns raised.  We'll continue to keep you apprised.

The American Industrial Hygiene Association (AIHA) recently sent a letter to the Acting Assistant Secretary of Labor for OSHA, Jordan Barab, urging OSHA to take immediate action to lower the Permissible Exposure Limit (PEL) for occupational noise exposure to 85 dBA (as an 8-hour TWA) and to adopt the 3 dB exchange rate (the "exchange rate" is the number of decibels permitted in a standard or criterion for each doubling or halving of exposure duration and is used as a criterion in measuring noise exposure levels).

Mr. Booher noted that "many agencies and organizations in the U.S. have adopted an occupational exposure limit of 85 dBA, with a 3 dB exchange rate.  Both the National Institute for Occupational Safety and Health (NIOSH) and the American Conference of Governmental Industrial Hygienists (ACGIH) have long recommended such exposure limits."  He further noted that "the vast majority of the nations of the world regulate workers' noise exposures at lower levels than the U.S."

With this letter, the AIHA strongly advised OSHA to "take immediate action on this issue to ensure that American workers are afforded the same level of protection from hazardous noise that the majority of the world's nations provide their workers."  The AIHA obviously believes that the new Obama administration offers a "window of opportunity" to revise the noise exposure PEL, which it and other organizations have advocated for some time.  The amount of support within the occupational safety and health community for this change is not readily apparent.  And since the position of OSHA Administrator has not yet been filled, no one can say what backing may exist inside of the agency for a lower PEL.  But it is certain that a reduction in the PEL from 90 to 85 dBA would affect a vast number of employers of every kind in both general industry and construction.  This petition to OSHA is surely one worth watching to see if it can gain a foothold on the agency's agenda in the coming years.  We will follow this issue and report on any future developments.

Several weeks ago I wrote a blog on Cal/OSHA's Heat Illness Standard.  More specifically, I addressed the issue of Cal/OSHA's 12-page Q&A and how the points raised are good, but they are not enforceable.  One question raised in the document deals with the requirement that employers must have a written program.  I cannot encourage employers enough to have a solid and complete written heat illness program.  Unfortunately, compliance with the standard is an issue of the employer's ability to effectively document actions rather than intent.  There are many employers who want to do the right thing, who are concerned about the health and safety of their employees, and make a reasonable attempt to do a good job, but are unable to prove the point to the compliance officer when he/she shows up at the door.  It is for this reason, I say Document, Document and then Document more.  The infamous Q&A document referenced above states that "It is up to the employer to...put in writing...effective procedures for water replenishment during the shift as needed, employee access to shade at all times for preventative recovery periods, employee and supervisor training, and responding to symptoms of possible heat illness, including how emergency medical services will be provided should they become necessary, how emergency medical services providers will be contacted, how employees will be transported to a point where they can be reached by an emergency medical service provider if necessary, and how, in the event of an emergency, clear and precise directions to the worksite will be provided as needed to the emergency responder."  This is a major task, not to be taken lightly.  For example, the apparent simple task of 'water replenishment' may not be so simple.  Your Program should clearly address when the water will arrive, how it will be cooled and kept cool, how the water will be replenished, who will check to determine if it needs to be replenished, where the water source will be placed so that it is in proximity to the worker, ensuring the water is potable, how the containers will be maintained to preclude biologic growth, and so on.  Once you address all of these issues IN WRITING, be sure the affected staff is instructed on how you intend to comply.  This is just one of the few points that need to be raised in the Heat Illness Program.  We have heard from several sources that employers have been cited for having programs that don't address all of these issues or that their staff is not fully aware of all of the elements of the employer's program.  Please be thoughtful when writing Cal/OSHA programs and should you have any questions, feel free to call us.  

The Cal/OSH Standards Board approved two landmark standards dealing with aerosol-transmissible and "zoonotic" diseases on May 21.  These new regulations have been discussed in great detail, particularly during the recent pandemic concerns associated with the swine flu.  The proposed standards, which are aimed at health care facilities, doctor's offices, clinics, homeless shelters, correctional facilities and emergency medical operations, will provide an enforcement mechanism to ensure that all employees are provided with a level of protection from the associated health risks.  The New ATD: General Industry Safety Orders §5199 requires covered employers which include Public Health facilities to implement control measures to protect workers from diseases spread through respiratory secretions, such as coughing or sneezing.  The second new standard, Zoonotic Disease: GISO §5199.1, requires covered employers to control hazards from exposure to animals infected with disease such as Hantavirus, monkey pox, anthrax and avian influenza.

Many medical and other healthcare facilities have started to prepare for a pandemic based on the recent events of SARS and swine flu, but they may not be in compliance with this new standard which has very rigid requirements that will go into effect this September.  We encourage all California employers, whether covered by this new Cal/OSHA requirement or not, to review their strategies for protecting the health of their employees during a pandemic or other public health emergencies.  Employers subject to the requirements should assemble a team and plan if they have not done so already.  The team should develop a coordinated and efficient response plan so that the needed public health information is gathered and transmitted.  The plan should ensure that communications to managers and employees about operations, cleaning protocols, leave and benefits are consistent and effective.  A good plan will address how anticipated disruptions can be managed effectively while avoiding litigation risks and panic within the workplace.

Recently a large retailer was cited for violations of Cal/OSHA's bloodborne pathogens standard.  The investigation was launched after a worker that used tagging guns was diagnosed with Hepatitis B.  Allegedly the worker may have been exposed to pathogens resulting from the tagging gun needle.  The citations included failure to provide training to employees exposed to blood and other potentially infectious materials and failure to establish a Sharps Injury Log to record exposure incidents along with other citations regarding tagging gun controls and needle protection.  This is a good reminder that the bloodborne pathogen standard is being enforced in settings that we may not traditionally consider. 

Last week we were asked whether fall protection is required for operators of scissor lifts.  This is a question asked frequently.  According to NIOSH statistics, falls from scissor lifts account for almost half of all aerial lift deaths in the construction industry.  However, neither OSHA (California or Federal) regulations nor ANSI standards require the use of fall protection for operators of scissor lifts.  OSHA regulations treat scissor lifts as a scaffolding system for safety purposes, which means that harnesses and lanyards are not required to prevent falls if guardrails are in use.  According to a 1998 Federal/OSHA Letter of Standard Interpretation, a "worker need only be protected from falling by a properly designed and maintained guardrail system.  However, if the guardrail system is less than adequate, or the worker leaves the safety of the work platform, an additional fall protection device would be required."  In fact, many scissor lift manufacturers do not provide an anchor point to attach fall protection equipment.  Personal fall arrest systems cannot be attached to guardrail systems.  It may be possible to attach a fall restraint system (only) to the mid-rail of the guard rail if it is designed to support 4 times the intended load.  Though fall protection is not required on a scissor lift where a guardrail is provided and where the worker is not leaning over or reaching beyond the confines of a guardrail, fall protection may be advisable if a proper anchor point is provided. (Ref: 8 CCR § 1670(a)(10))

At a recent meeting, we discovered that some construction contractors who are otherwise in compliance with Cal/OSHA's Lead In Construction Standard may not be aware of the pre-job notification requirement therein.  Under Title 8 CCR 1532.1 subsection (p), "Lead-Work Pre-Job Notification," employers are required to provide written notification (at least 24 hours prior to disturbance) for a variety of work activities that involve lead-based paint or other material containing lead at a concentration equal to or greater than 0.5 percent.  Look for our related article in the upcoming Current Issues newsletter.

With the breaking news of a dangerous new strain of a swine flu virus that has sickened many people in Mexico and that appears to be spreading into California, Gov. Arnold Schwarzenegger has ordered immediate measures to head off a possible pandemic in our state.  Although it is unlikely the swine flu virus would ever become a pandemic, California public health officials are working with influenza experts from the Centers for Disease Control and Prevention (CDC) to expand testing efforts and monitor the situation closely.  It is worth noting at this time of concern that Cal/OSHA has been working for several years on a proposed new standard to protect front line health care workers from "aerosol transmissible diseases," such as this new swine flu and the SARS virus that was first identified during an outbreak in Asia a few years ago.  The draft of the proposed standard, which will become section 5199 of the General Industry Safety Orders when adopted, was first issued in 2006 and is now nearing completion (see the DOSH website or contact The Cohen Group for more information).  The new standard applies to "referring employers" (which includes most medical offices and clinics, as well as homeless shelters and jails), laboratory operations, and employers who provide services to patients with airborne infectious diseases (such as hospitals and emergency medical providers).  The requirements vary by employer category, but generally mandate the use of engineering and work practice controls, personal protective and respiratory equipment, communication practices and risk-reduction measures, as well as medical surveillance and training for workers.  California once again leads the nation in dealing with worker safety for emerging workplace hazards.