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  • Safeguarding 101What needs to be guarded, to what degree, and with what type of device

    Throughout the world countless governing bodies and agencies as well as standards, regulations and policies have been established specifically with the goal of machine safety. Stringent safety standards mean that today’s machines are designed with greater safeguards for both the operator and process. However, the actual process of safeguarding may still raise the same questions to some as they have 20 years ago. What needs to be guarded, to what degree and with what type of device? The Occupational Safety & Health Administration (OSHA) under the United States Department of Labor is responsible for setting forth polices to ensure safe working conditions which include machine safety as described in 1910 Subpart O - Machinery and Machine Guarding. The General Duty clause issued under the OSHA Act of 1970 states that each employer is responsible for supplying a workplace which is “free from hazards that are causing or are likely to cause death or serious physical harm”. The options to provide such a workplace are endless and knowing where to begin the process can be over- whelming. There are a few regulations that call out requirements for specific machinery such as 1910.213 for woodworking machinery or 1910.217 for mechanical power presses, but these requirements are a bit abstract and leave room for interpretation. Since the process to change or update regulations to a more current and clear set of documents can be long and arduous, OSHA suggests the use of the most current and relevant industry consensus standards be followed when needed in an effort to be sure employers are well informed when working to pro- vide a safe workplace. For example ANSI RIA15.06 is a current and relevant industry standard which is used to safeguard robot and robotic cell application. Another example is NFPA 79 which is used to ensure proper wiring practices are used. It is clear that it is a requirement by law to provide a safe working environment. In order to provide safe working conditions we first need to know what is to be safeguarded, thus the first step in safeguarding is to identify the hazards or the risks associated with the machine. Identifying these risks is also one of the first steps in the risk analysis process. These risks include, but are not limited to: mechanical hazards such as rotating or sharp parts; electrical hazards such as live parts; radiation; ergonomic, etc. ISO 12100 Safety of Machinery — Risk Assessment is a current and relevant industry consensus standard which can be used as a guide to help identify machine hazards. Read more

  • Reclassification of Marijuana is Underway, but Approval for Workers’ Comp and Auto Injuries Will Take Time

    May 28, 2024 Barely noticed outside marijuana industry groups, the Biden Administration has been moving to change the classification of marijuana as a less dangerous drug. That follows a recommendation by the U.S. Department of Health and Human Services to the Drug Enforcement Agency last year to reclassify the substance from a Schedule I drug to a Schedule III drug. The move by the DEA will portend change in how marijuana is used to treat workers’ compensation and auto injury claimants. On April 30, sources in the DEA revealed the agency is taking steps to officially reclassify marijuana, and that news is getting noticed. Moving marijuana to Schedule III would not legalize it federally for recreational use, but it would for medicinal use. The DEA website defines Schedule III drugs as those “with a moderate to low potential for physical and psychological dependence.” Some examples of Schedule III drugs are products containing less than 90 mg of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone. For workers’ comp and auto personal injury claims, the current status of marijuana as a Schedule I drug is creating challenges for employers and insurers. As more states legalize marijuana for medicinal use, carriers and employers find themselves potentially at odds with federal law as physicians recommend marijuana to treat claimant injuries. State and federal courts have issued conflicting rulings on whether insurers or employers are required to reimburse for medical marijuana. The U.S. Supreme Court had an opportunity in 2022 to hear two cases out of Minnesota but decided the issue wasn’t ripe for their consideration. The change in status of marijuana will clear up any questions on the legality of reimbursing claimants for medical marijuana. Classifying marijuana as a Schedule III drug will also create an environment in which marijuana will be subjected to more rigorous clinical trials and FDA standards for prescription drug use. Better clinical data will help employers and insurers gain greater confidence around medical marijuana use and provide researchers with information needed to weave the clinical use into treatment guidelines However, reclassification could take some time. The DEA took the next step toward that process on May 16 by releasing a formal ruling for rescheduling. This action kicks off a 60-day public comment period. After that time, the ruling will undergo a judicial review prior to approval. After the rulemaking process and judicial review, the DEA could publish a final rule. Moving marijuana to Schedule III would allow the FDA to regulate it like any other prescription medication. It would also make it easier for researchers to gain access to marijuana for study purposes. Over time, medical marijuana will likely move from the corner dispensaries you see today to local pharmacies and would be distributed like other prescription drugs. It would also make it easier for providers to prescribe medical marijuana. Once the FDA starts approving prescription medical marijuana, it will become more common as part of the drug regimen for a claimant. Marijuana would still need to be medically necessary for a particular injury, and FDA approval would indicate approved clinical uses for the drug. Medical marijuana would have to meet the same criteria for use as any other medication. Still, the federal rulemaking process can take months to years, and drug manufacturers will need time to develop, test and clinically try any proposed drug before it is ready to market to consumers. So, it will be quite some time before an approved marijuana-based medication is ready to join the mainstream of medications. Allen is vice president of government affairs for Enlyte’s Pharmacy Solutions team. In this role, Allen provides clients with insight into new legislation and regulations in pharmacy solutions and workers’ comp. He is a nationally recognized policy expert for workers’ compensation and insurance issues.

  • Shooting Leads to Workers’ Compensation Dispute: Court Says …

    May 20, 2024 An employee who was denied workers’ compensation benefits after being shot by a co-worker can proceed with a tort claim against his employer, a state appeals court in Florida has ruled. This case involves Giovanni Bastien, who worked at a Pepsi packaging and distribution facility in Medley, Florida. Bastien was shot by a co-worker who was “purportedly disgruntled over union activities,” the court’s decision says. Argument escalates to shooting A local news report gives more detail about the specific circumstances surrounding the shooting. It says that Bastien argued with co-worker Jimmy Lee Franklin at work about union issues before the two agreed to clock out of work and go find a place to fight. The news report adds that after the pair moved off site, the argument escalated and Franklin shot Bastien multiple times. Bastien then drove back to work before being taken to the hospital, it says. According to the court decision, Bastien told his manager while he recovered from his injuries in the hospital that he planned to file a claim for workers’ compensation benefits. The employer fought the workers’ compensation claim, saying that Bastien was not entitled to receive workers’ compensation benefits because his injuries did not occur within the course and scope of his employment. Workers’ compensation benefits denied The state’s division of workers’ compensation agreed with the employer. It denied Bastien’s claim entirely, noting that the shooting took place off the employer’s premises. Bastien responded to that development by filing a tort suit against the employer. The employer said that claim could not proceed because it was entitled to workers’ compensation immunity. In other words, the employer argued that workers’ compensation was the only avenue of relief available to Bastien – even though it had just argued that he was not entitled to workers’ compensation benefits. A trial court said the employer could not raise the immunity defense, and the employer filed an appeal. Appeals court explains The reviewing court explained that the state’s workers’ compensation is set up to ensure the quick and efficient delivery of disability and medical benefits to injured workers, and that it operates without regard to fault. Under the workers’ compensation system, it added, employees generally give up the right to sue for negligence in exchange for the rapid recovery of benefits. The rule that workers’ compensation benefits are an injured employee’s exclusive remedy has exceptions. One of those exceptions applies when an employer asserts that an employee’s injury did not occur within the course and scope of their employment. You can’t have it both ways That is exactly what happened here. The employer opposed the workers’ compensation claim on the basis that Bastien’s injuries did not occur within the course and scope of his employment. Then, it turned around and argued in the tort action that workers’ compensation was Bastien’s exclusive remedy. The court also noted that under state workers’ compensation law, employers cannot assert workers’ compensation exclusivity in cases involving intentional torts. The court’s decision does not explicitly address that exclusion’s application to Bastien’s injury. The court ruled that the employer could not assert the immunity defense. Though the employer may have celebrated what looked like a win when it avoided the claim for workers’ compensation benefits, now it must face the challenge of defending and defeating what could ultimately become a much more expensive claim against it. OSHA offers guidance The Occupational Safety and Health Administration (OSHA) has developed a number of resources that are designed to help employers keep violence out of their workplace. OSHA says factors that affect the risk of workplace violence include: whether money is exchanged with the public whether alcohol is served where the work is performed time of day location of work. As far as occupations that are more prone to involve violence, OSHA identifies the following: Workers who exchange money with the public Delivery drivers Healthcare professionals Public service workers Customer service agents Law enforcement personnel People who work alone or in small groups. OSHA recommends establishing a zero-tolerance workplace violence policy and advises employers to conduct workplace assessments that will identify ways to reduce the likelihood of a violent incident.

  • No shade, no water, no breaks: DeSantis' new law threatens Florida outdoor worker health

    May 15, 2024 NAPLES, Fla. – In South Florida, one of the state's hottest regions, María González works outdoors cleaning planes. González spends her nights on the airport tarmac doing deep cleans of planes – scrubbing away feces, vomit, animal and human hair and more. Often, she said, airline staff turn off the plane’s air conditioning to save gasoline and money and let it sit on the asphalt, which radiates heat. “Hay mucho calor, entonces uno sude y sude y sude,” González said. “El calor se duplica ahora porque empiece el verano.” In English: it gets so hot on the planes as she cleans that she can’t stop sweating. And in the summer? The heat doubles. “Me siento como mal, como yo me fuera a desmayar,” said González, explaining that her blood pressure drops, and she often feels so ill that she thinks she’s going to faint. But in April, Gov. Ron DeSantis signed a law banning local municipalities from requiring employers to give heat breaks to outdoor workers such as González, a move DeSantis himself admitted to media was to slap back at one of Florida’s most progressive municipalities, Miami-Dade County, one county south from where she works. Only Miami-Dade County required employers to provide heat breaks to begin with. DeSantis' office did not respond to requests for comment. Still, his decision to get rid of home rule in a state that values small government and is one of the hottest states in the nation took some local officials aback and infuriated outdoor workers and their advocates in some of the hottest regions of the state. In a warming world, outdoor workers and organizations that protect them say heat and water breaks are a matter of life and death. “These pro-heat stress bills are really about making sure no one is held accountable if something bad happens to workers…if they get sick or die in extreme heat,” said Florida District Director for Miami-based custodial workers' union SEIU 32BJ Helene O’Brien. Florida holds municipalities to a heat standard that doesn't exist Florida House Bill 433 states that cities or towns don’t have a right to require employers to provide heat or shade breaks that the state or federal government doesn’t already require. Absent a state department of worker safety, Florida falls under federal OSHA jurisdiction, which covers most private-sector workers in the state. However, neither the federal government nor Florida has a heat standard that requires breaks at certain temperatures or sun exposure; advocates say the language is frustratingly vague. Federal workplace safety agency OSHA instead requires breaks "long enough for workers to recover from the heat." And while OSHA requires employers to provide water for workers, it doesn’t require that employers give their workers time to drink the water. The vagaries of the policy have allowed some companies to push the limits – until their workers feel the effects. And the threat of an OSHA investigation doesn't always strike fear into the hearts of management or owners. Just last summer, one farmworker, 29-year-old Efraín López García, died from heat exposure just hours into his first day on the job at a Homestead fruit farm. It was July 6, and the heat index hit 105 degrees that day, according to the National Weather Service. The farm labor contractor that employed him, McNeill Labor Management, was found to have exposed workers to direct sunlight and failed to implement protections. Despite its role in López García’s death, the company is now fighting the $27,655 in proposed penalties OSHA imposed upon the business. González says her employer, HHS Aviation, a cleaning company that contracts for Delta Airlines, has also ignored federal workplace safety standards. HHS Aviation does, in theory, provide water, González said. But not in practice. After multiple employees complained about a lack of water, which is against federal law, management purchased and placed a water cooler in the break room two months ago, she said. However, Gonzalez added, there is no water in it – and there has never been. This leaves González and her coworkers thirsty, even dehydrated. She carries water to work, but doesn’t have a place to store it outside her locker. She can’t carry it with her while cleaning, or waiting for a plane to arrive – she can only drink when she is on break near her locker. She said she was unaware of any other water sources available to the employees. HHS Aviation disputed González's accounts of the heat and lack of water in her workplace, insisting that employees were allowed to refuse to board a plane and begin cleaning until it was fully cooled, and were trained to stop working when it was unsafe to do so. Additionally, in an email, the company said employees have had access to clean drinking water since operations began Sept. 19, 2023. Too, HHS said, break areas contained bottled water and hallways sported communal water fountains. "HHS Aviation is committed to the health and safety of our team members, as they are our most valuable asset. We ensure all team members receive access to water, proper training, proper functioning tools and equipment, and designated rest periods," wrote marketing vice president Shannon Steck in an email. "We comply with all Occupational Safety and Health Act regulations, Transportation Safety Administration programs and directives, and applicable federal, state, and local laws and regulations." After the USA TODAY Network-Florida called HHS Aviation and Delta Airlines about González's complaints, she said management finally filled the water cooler in the break room. Delta Airlines declined to comment. Though O'Brien says SEIU 32BJ has filed federal complaints against HHS Aviation on González and her coworkers' behalf, OSHA and other federal agencies can be slow to act. And González and her union point to HB 433 as an example of the state not having workers’ backs, either. While the federal government is working on adding a heat standard for workers, it won’t be in place for at least two years, if not more – and will likely be killed if Trump wins the November election, worker advocates and heat experts say. Although Florida has hamstrung its municipalities with this law, O'Brien said laborers still have other options to fight the heat and negotiate better working conditions for themselves: unionization. “Maybe we need to be bigger at the state level and hold employers accountable for mistreatment of workers,” O’Brien said. “People are going to organize and going to fight … with whatever channels they have.”

  • How much does high heat increase worker injuries? This new study says a lot.

    May 13, 2024 After Florida lawmakers this year barred local heat protections for workers, a new study cites “strong and robust evidence that excessive heat increases the frequency of injuries” to workers — with risks particularly in the South. The Workers Compensation Research Institute last week released the study, which uses workers’ compensation insurance claims data and temperature data from 2016 to 2021. The study included data from 24 states in the South, Midwest and Northeast. In part, it found that the probability of work-related accidents increases by 5 percent to 6 percent when maximum daily temperatures top 90 degrees, compared to days when temperatures are 65 degrees to 70 degrees. It also cited a “clear increase” in numbers of days with temperatures over 90 degrees and 100 degrees over a four-decade period. “It is apparent that excessive heat has become more frequent, and if these trends continue, the result will be more heat exposure for the workforce,” the study said. The study was released less than a month after Gov. Ron DeSantis signed a bill (HB 433) that includes preventing local governments from requiring heat-exposure protections for workers. The bill, which also will prevent local governments from placing wage requirements on contractors, drew heavy debate during this year’s legislative session and was backed by business groups. The heat-related part of the bill came after the Miami-Dade County Commission last year considered a proposal to require construction and agriculture companies to take steps such as ensuring that workers have access to water and giving them 10-minute breaks in the shade every two hours when the heat index is at least 95 degrees, according to a House staff analysis. Supporters of the bill said it would prevent a patchwork of regulations and that employers already face requirements to protect workers from heat-related injuries. For example, Associated Industries of Florida said on its website in March that there “are clear standards employers must meet and this bill will prevent another level of regulation in this area and an unlevel regulatory playing field.” But dozens of organizations, such as the Center for Biological Diversity, Earthjustice, the League of Women Voters of Florida, the Farmworker Association of Florida and the NAACP Florida State Conference, urged DeSantis to veto the bill. One letter, for example, said preempting “local governments’ ability to protect workers from climate-caused extreme heat is inhumane and will have enormous negative economic impacts when lost productivity is taken into account.” The non-profit Workers Compensation Research Institute conducts studies of issues related to workers’ compensation insurance. A list of members and supporters on its website includes insurers, health-care companies and major businesses, such as Publix Super Markets, Inc. and The Walt Disney Co. The new study looked at temperature ranges and what it described as “direct” injuries to workers, such as heat exhaustion, and “indirect” injuries. As an example, an indirect injury could involve a worker growing fatigued and falling off a ladder. While researchers found an overall increase in risks as temperatures rose, researchers wrote that “we detected the largest effects of excessive heat in the South” and cited higher risks in the construction industry. The study said that under the federal Occupational Safety and Health Act, employers are responsible for “providing workplaces free of known safety and health hazards (also known as the ‘general duty’ clause), including protecting workers from heat-related hazards.” But it said “there is no federal occupational health and safety standard in effect to protect workers from heat exposure. OSHA has been taking steps toward the creation of a federal standard protecting workers against excessive heat that would more clearly set forth employer obligations and measures.” By Jim Saunders, News Service of Florida

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