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Newsletter
Volume 130
September 2, 2014
Award-Winning Fire ChiefSpotlight: Award-winning Fire Chief
Waynetown Volunteer Fire Department Chief Phil Pirtle knew something was up when he received an invitation to the annual Fire Chiefs Association Awards Banquet. After several awards were presented to other public safety officials, Pirtle was surprised to hear his name announced as the association's Indiana Volunteer Fire Chief of the Year.
The award is presented annually to a fire chief that demonstrates leadership and whose accomplishments rise above the day-to-day excellence in training according to the association's website. Pirtle was selected from five finalists. He was recognized as a leader and for other volunteer work he has done. Recently, Pirtle, who works for Ceres Solutions, applied for and received a grant for safety visibility vests for area farmers.
Pirtle is known for thinking outside the box and being creative to get a job done. Co-workers report his efforts in response are off the charts. He has opened the firehouse to the community and stranded motorists during the winter months, provided hot meals at all hours and utilized snowmobiles to aid in life-saving measures. He is proactive in helping not only his department, but also departments in adjacent counties. He attends other counties' LEPC meetings and is dedicated to serving his community and those around him according to a press release from the Indiana Emergency Response Association. Pirtle joined the W.F.D. in 1980. He was named chief in 1992 and does not have any plans to stop serving his community. Congratulations Phil!
State Association Executives Participate in ResponsibleAg Workshop
ResponsibleAg Workshop
(Left to right): Randy Stookey, Kansas Agribusiness Retailers Association; Martin Jeppeson, CALAMCO; Kathy Zander, South Dakota Agribusiness Association; Steve Taylor, Missouri Agribusiness Association; Jim Fitzgerald, Far West Agribusiness Association; Leigha Cauthen, Alabama Agribusiness Council; Kevin Johnson, Illinios Fertilizer & Chemical Association; Ron Akin, Tennessee Agricultural Production Association. (Not pictured): Bill Bond, Minnesota Crop Production Retailers
On August 7th, the Asmark Institute welcomed State Association Executives from around the country to participate in a one-day ResponsibleAg workshop in Owensboro, Kentucky. The workshop was very successful in providing the state associations with an overview of the program's registration and audit process, website features, audit content and preview of the auditor course agenda. Participants also had a chance to tour the facility that will serve as the new training center for ResponsibleAg auditors. There will be a third meeting for State Association Executives held in Owensboro, Kentucky on September 16th. The State Associations are important to the success of ResponsibleAg, by providing a valuable resource to their members who will be asked to be a part of this important initiative.
Nurse Tank Inspection Program Reminder
On February 1, 2011 DOT issued its final rule incorporating the special permit SP-13554 into the hazardous materials regulations. As a result of this final rule, anhydrous ammonia nurse tanks with missing or illegible data plates no longer need to be marked with the special permit sticker, but the requirements outlined in the special permit for continued operation still need to be met. This means for these tanks, there is a five year inspection and testing cycle that must be performed to continue to keep these tanks in service. Click here to review the requirements contained in Section 173.315 (m) (1) and (2) for operating nurse tanks with missing or illegible data plates. Have you tested/inspected your nurse tanks with missing or illegible ASME data plates?
Coming Soon to a Computer Near You!
The Asmark Institute staff has been hard at work this year on a number of new features and services to be introduced this fall. Watch for the new feature that will allow you to return monthly training certificates electronically. For the website, we will launch a new streamlined, easier to use homepage and Snapshots Management Dashboard. These features are in addition to our work in helping build the ResponsibleAg training curriculum, assessment checklist, audit process, database and the Ford B. West Training Center for Responsible Agriculture.
Case Study: Home Depot Cited by OSHA
Home Depot has been cited for six, including two repeat, one willful and three serious safety violations, at one of its home improvement stores in Chicago. The repeat and willful violations involved lack of training and maintenance for powered industrial vehicles. Proposed penalties total $110,700.
"Employees at this Home Depot store used powered industrial vehicles around-the-clock to receive stock and transport goods to customers' vehicles. This made maintenance and operator training for these vehicles vital to employee safety," said Angeline Loftus, OSHA's area director for Chicago North. "Employers, such as Home Depot, have a responsibility to re-evaluate safety procedures corporate-wide. When cited for a hazard at one store, they need to ensure that all stores have incorporated the necessary safety procedures and training."
Nationwide, Home Depot has been cited more than 120 times in the past five years for safety and health violations at its stores, which employ about 325,000 people. The Kimball Avenue store employs 210 workers. Click here to view the citations.
Note: If you are a company with more than one location, take heed of this case study. Being cited at one location in a chain can result in the next citation being handled differently.
EPA Draws Fire on WPS Proposal
EPA's proposed modernization of its agricultural workers protection standard, designed to protect farm workers from pesticide exposure, drew increasing fire this week even as the official comment period on the proposal closed. The rule, not updated since 1992, increases training frequency and updates prevention and treatment requirements in pesticide exposure situations. It also says workers under 16 years old cannot handle any pesticide. EPA estimates the new rules will cost farms about $5 per worker per year, a figure the agency said is the average calculated across all farms without regard to pesticide use or whether they hire outside labor.
On one hand, over 70 Democrat House members told EPA in a letter the proposed rule is too weak, protections should be as stringent as in other work areas, and that the rule contains "serious flaws...that perpetuate inequity and continue to leave the men, women and children who produce our food less protected than other workers." The lawmakers want more stringent requirements for emergencies, child-specific protections, including raising the age limit on handling pesticides from 16 to 18 years old, as well as medical monitoring of workers and protection from retaliation if a worker reports the misuse of a chemical.
On the other hand, the National Association of State Departments of Agriculture (NASDA) compiled the results from a task force of 30 state departments of agriculture who reviewed the proposed rule. NASDA told the agency the current rule works well and that many of the proposed agency changes are covered in existing federal and state law. Further, EPA did not adequately take into account how much the changes will cost the states to implement and urged the agency to rescind the rulemaking and focus "the necessary resources to work with state lead agencies and agriculture stakeholders to enhance the effectiveness of the current worker protection standards."
EPA Forced to Release WOTUS Maps - Details Expansive Plan
House Committee on Science, Space and Technology Chairman Lamar Smith, R-Texas, on Wednesday August 27th, announced the release of maps produced by the EPA that detail all the waters and wetlands of each of the 50 U.S. states. The maps had until Wednesday remained private, but former EPA Deputy Administrator Bob Perciasepe agreed to release them following Smith's requests. According to the National Cattlemen's Beef Association (NCBA), the maps "appear to detail the extent of the Waters of the United States proposal." "These maps show the EPA's plan to control a huge amount of private property across the country," Smith said in a letter sent this week to EPA Administrator Gina McCarthy. "Given the astonishing picture they paint, I understand the EPA's desire to minimize the importance of these maps. But the EPA's posturing cannot explain away the alarming content of these documents." Smith urged McCarthy to release additional information explaining the existence of the maps and why taxpayer money was used to create them, "just days after the EPA announced its Waters of the U.S. rule (WOTUS)." Knowledge of the maps came as the Committee was doing research in preparation for a hearing regarding the proposed WOTUS rule, NCBA said.
"It is deplorable that EPA, which claims to be providing transparency in rulemakings, would intentionally keep from the American public a taxpayer-funded visual representation of the reach of their proposed rule," Ashley McDonald, NCBA environmental counsel, said in a statement. "Unfortunately, it is just another blatant contradiction to the claims of transparency this Administration insists they maintain."
NCBA said the maps show individual states could face upwards of 100,000 additional stream miles that could be regulated under the proposed rule. "This is the smoking gun for agriculture," McDonald said. "These maps show that EPA knew exactly what they were doing and knew exactly how expansive their proposal was before they published it."
Requests have since been sent to EPA asking they keep the public comment period open for at least 60 days to provide adequate opportunity review. The American Farm Bureau Federation is also planning to release its own maps detailing the extent of the WOTUS proposal in September, says American Farm Bureau's Senior Director of Regulatory Relations Don Parrish. The EPA maps are available on the House Science Committee website.
OSHA Extends Comment Period for Injury/Illness Recordkeeping
OSHA has announced it will extend the comment period on the proposed rule to improve the tracking of workplace injuries and illnesses to October 14, 2014. The proposal, published on November 8, 2013, would amend the agency's recordkeeping regulation to add requirements for the electronic submission of injury and illness information that employers are already required to keep.
OSHA is soliciting comments on whether to amend the proposed rule to: 1) require that employers inform their employees of their right to report injuries and illnesses; 2) more clearly communicate that any injury and illness reporting requirements established by the employer must be reasonable and not unduly burdensome; and 3) provide OSHA additional means to prohibit employers from retaliating against employees for reporting injuries and illnesses.
Drivers Beware! Misinformation May Lead to Downgraded CDL
The required use of Medical Examiners (MEs) appearing on the National Registry of Certified Medical Examiners (NRCME) for all interstate driver physical examinations performed as of May 21, 2014, has resulted in a common myth circulating in the transportation industry.
Many drivers and motor carriers have incorrectly come to believe the MEs will submit proof of medical certification to State Driver Licensing Agencies (SDLAs) on behalf of CDL holders. This is untrue. MEs have not been assigned this task. CDL holders that mistakenly believe this is taking place may find their CDLs downgraded if they fail to personally submit the medical examiner's certificate.
Where is this misconception originating? It may have its roots in one of two sources. MEs are required to submit to DOT a monthly report on the exams they have performed during the previous month. This information is submitted on the federal level and is not shared with individual state licensing offices.
The other possible source for the incorrect understanding of the NRCME rule is a proposed rule from May 2013. The DOT's proposed rule would require MEs to submit, on a daily basis, driver physical examination results to the DOT. The proposal calls for the electronic transmission of driver identification, examination results and restriction information from the National Registry system to the SDLAs. However, it is important to note that is still a proposal and the agency has not gone forward with its concept.
DOT Issues New Guidance for Drug Testing Process - Refusals
DOT has issued new guidance explaining when DOT-regulated employees can leave a urine collection site without violating the testing rules. The new question-and-answer guidance clarifies:
  • When a collector may give an employee permission to leave a collection site, and
  • What happens if an employee leaves the collection site before testing is complete.
According to DOT, the new guidance "constitutes official and authoritative guidance and interpretation" concerning its drug and alcohol testing rules in 49 CFR Part 40. The guidance was issued on July 3, 2014, by the DOT's Office of Drug and Alcohol Policy and Compliance. According to the new guidance, the testing process is complete when the chain of custody form (CCF) has been filled out and the urine specimens have been sealed in plastic bags, as specified in Sec. 40.73(a)(1)-(6).
If an employee leaves the collection facility before that process is complete, the collector must inform the employer who then must decide whether the employee's actions constitute a refusal to test. "To make this determination," the guidance states, "the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the employee (i.e., in the event of a medical emergency, copies of hospital admission records/EMS records/police records, etc)."
"The employer must document its decision and the solid reasoning for the decision, in all collection site refusal determinations. Copies of these decisions and the information relied on in making those decisions, must be maintained in accordance with Sec. 40.333 and the applicable modal recordkeeping requirements." The guidance goes on to state that if a DOT auditor finds that the employer has not properly documented their "refusal" determinations, they may be subject to penalties.
OSHA Issues Memo on Temporary Workers
A recent memorandum to OSHA regional administrators describes the agency's policy on the Temporary Worker Initiative (TWI) and promises further enforcement and compliance guidance. The memo is meant to remind OSHA field staff of the agency's longstanding general enforcement policy regarding temporary workers. TWI was launched in April 2013 to focus attention on preventing injuries and illnesses among temporary workers and highlighting employers' responsibilities to protect these workers.
In clarifying employer responsibilities, the memo says it is a fundamental principle that temporary workers are entitled to the same protections under the OSH Act as all other covered workers. The staffing agency and host employer must work together to ensure that OSH Act requirements are fully met and that the temporary worker is provided a safe workplace. This requires effective initial and follow-up communication and a common understanding of the division of responsibilities for safety and health. OSHA compliance officers should review any written contract between the staffing agency and the host employer and determine if it addresses responsibilities for employee safety and health. It should be understood, however, that the contract's allocation of responsibilities may not discharge either party's obligations under the Act.
The memo goes on to describe when a compliance office should open an inspection with a staffing agency. When a temporary worker is exposed to a violation, the compliance officer should make inquiries into the staffing agency's actual or constructive knowledge of the worksite's hazards - whether the staffing agency knew, or with the exercise of reasonable diligence, could have known about the hazards. The officer should review such factors as the terms of the staffing agency-host employer contract, the interaction and communication between the staffing agency and the host employer, the staffing agency's contact with its temporary workers, whether those workers have had any complaints or concerns and whether they have made those concerns known to the employers.
If a temporary worker is or could be exposed to a serious hazard or if the staffing agency does not appear to have taken any actions to learn of the conditions at the host's worksite, then the compliance officer should initiate an inspection with the staffing agency. In all other instances, area directors may decide, based upon the evidence found during the inquiries, whether to open an inspection with the staffing agency. OSHA also plans to release a compliance directive on the TWI.
DOT Proposes Harmonization with International Standards
DOT is proposing to amend the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. Comments must be received by DOT by October 24, 2014.
State Labor Law Poster Updates
California - Whistleblower - Effective currently.
The amendments to the law went into effect January 1, 2014, but the new poster was only recently created and released by the agency. California has released a new version of the Whistleblowers notice. This notice highlights the expanded protections of the Whistleblower Protection Act. Previously, reports made to government agency were protected from retaliation. Under the new revisions, reports made internally (ex. to a supervisor) as well as to a "public body conducting an investigation or hearing" are also protected. Further, it now includes protection for reports of violations of local laws, in addition to previously protected reports of state and federal laws. This is a material substantive change and a new, California All-In-One poster is required. Click here to order.
Maryland - Minimum Wage Notice - Effective 10/1/14
Maryland has released their new notice reflecting the changes to the minimum wage through 2018. The wages are as follows:
Until 12/31/14 - $7.25
Eff. 1/1/15 - $8.00
Eff. 7/1/15 - $8.25
Eff. 7/1/16 - $8.75
Eff. 7/1/17 - $9.25
Eff. 7/1/18 - $10.10
The revision date is listed as 5/14 (even though the poster was only created toward the end of June). The first changes that go into effect on the notice are the county changes, which go into effect on 10/1/14. The poster also makes mention of the upcoming posting requirements for Prince George and Montgomery counties. This is a material substantive change and a new, Maryland All-In-One poster is required. Click here to order.
Minnesota - Minimum Wage Notice on 6/3/14
Minnesota has passed a law increasing the minimum wage over the next few years. The wages will be as follows:
Provision
Current law
New law
Large employer wage
$6.15/hour
$8.00/hour on Aug. 1, 2014
$9.00/hour on Aug. 1, 2015
$9.50/hour on Aug. 1, 2016
Small employer wage
$5.25/hour
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
90-day training wage (under 20 years of age)
$4.90/hour
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
Youth wage (under 18 years of age)
No youth wage
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
Inflation increase
No inflation increases
Inflation indexing begins Jan. 1, 2018
This is a material substantive change and a new, Minnesota All-In-One poster is required. Click here to order.
Most Noteworthy: Robin Williams
We've lost one of those very special people who had the ability to make us laugh and forget about life's troubles for a while. Robin Williams firmly made his mark in history as one of the greatest actors and comedians who ever lived. Fitting is this line from the movie Watchmen.
"Man goes to doctor. Says he's depressed. Says life is harsh and cruel. Says he feels all alone in a threatening world." Doctor says, "Treatment is simple. The great clown Pagliacci is in town tonight. Go see him. That should pick you up." Man bursts into tears. Says, "But doctor... I am Pagliacci."
While his tragic death is causing tears of sorrow, Williams' life will be most remembered for the times he caused tears of laughter. He had the wonderful ability to delight adults and children alike, with the energetic enthusiasm that he threw into every role. However, some of his most memorable roles were the ones where he could make us happy and sad all in the same moment.
2014 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.
Award-Winning Fire ChiefSpotlight: Award-winning Fire Chief
Waynetown Volunteer Fire Department Chief Phil Pirtle knew something was up when he received an invitation to the annual Fire Chiefs Association Awards Banquet. After several awards were presented to other public safety officials, Pirtle was surprised to hear his name announced as the association's Indiana Volunteer Fire Chief of the Year.
The award is presented annually to a fire chief that demonstrates leadership and whose accomplishments rise above the day-to-day excellence in training according to the association's website. Pirtle was selected from five finalists. He was recognized as a leader and for other volunteer work he has done. Recently, Pirtle, who works for Ceres Solutions, applied for and received a grant for safety visibility vests for area farmers.
Pirtle is known for thinking outside the box and being creative to get a job done. Co-workers report his efforts in response are off the charts. He has opened the firehouse to the community and stranded motorists during the winter months, provided hot meals at all hours and utilized snowmobiles to aid in life-saving measures. He is proactive in helping not only his department, but also departments in adjacent counties. He attends other counties' LEPC meetings and is dedicated to serving his community and those around him according to a press release from the Indiana Emergency Response Association. Pirtle joined the W.F.D. in 1980. He was named chief in 1992 and does not have any plans to stop serving his community. Congratulations Phil!
State Association Executives Participate in ResponsibleAg Workshop
ResponsibleAg Workshop
(Left to right): Randy Stookey, Kansas Agribusiness Retailers Association; Martin Jeppeson, CALAMCO; Kathy Zander, South Dakota Agribusiness Association; Steve Taylor, Missouri Agribusiness Association; Jim Fitzgerald, Far West Agribusiness Association; Leigha Cauthen, Alabama Agribusiness Council; Kevin Johnson, Illinios Fertilizer & Chemical Association; Ron Akin, Tennessee Agricultural Production Association. (Not pictured): Bill Bond, Minnesota Crop Production Retailers
On August 7th, the Asmark Institute welcomed State Association Executives from around the country to participate in a one-day ResponsibleAg workshop in Owensboro, Kentucky. The workshop was very successful in providing the state associations with an overview of the program's registration and audit process, website features, audit content and preview of the auditor course agenda. Participants also had a chance to tour the facility that will serve as the new training center for ResponsibleAg auditors. There will be a third meeting for State Association Executives held in Owensboro, Kentucky on September 16th. The State Associations are important to the success of ResponsibleAg, by providing a valuable resource to their members who will be asked to be a part of this important initiative.
Nurse Tank Inspection Program Reminder
On February 1, 2011 DOT issued its final rule incorporating the special permit SP-13554 into the hazardous materials regulations. As a result of this final rule, anhydrous ammonia nurse tanks with missing or illegible data plates no longer need to be marked with the special permit sticker, but the requirements outlined in the special permit for continued operation still need to be met. This means for these tanks, there is a five year inspection and testing cycle that must be performed to continue to keep these tanks in service. Click here to review the requirements contained in Section 173.315 (m) (1) and (2) for operating nurse tanks with missing or illegible data plates. Have you tested/inspected your nurse tanks with missing or illegible ASME data plates?
Coming Soon to a Computer Near You!
The Asmark Institute staff has been hard at work this year on a number of new features and services to be introduced this fall. Watch for the new feature that will allow you to return monthly training certificates electronically. For the website, we will launch a new streamlined, easier to use homepage and Snapshots Management Dashboard. These features are in addition to our work in helping build the ResponsibleAg training curriculum, assessment checklist, audit process, database and the Ford B. West Training Center for Responsible Agriculture.
Case Study: Home Depot Cited by OSHA
Home Depot has been cited for six, including two repeat, one willful and three serious safety violations, at one of its home improvement stores in Chicago. The repeat and willful violations involved lack of training and maintenance for powered industrial vehicles. Proposed penalties total $110,700.
"Employees at this Home Depot store used powered industrial vehicles around-the-clock to receive stock and transport goods to customers' vehicles. This made maintenance and operator training for these vehicles vital to employee safety," said Angeline Loftus, OSHA's area director for Chicago North. "Employers, such as Home Depot, have a responsibility to re-evaluate safety procedures corporate-wide. When cited for a hazard at one store, they need to ensure that all stores have incorporated the necessary safety procedures and training."
Nationwide, Home Depot has been cited more than 120 times in the past five years for safety and health violations at its stores, which employ about 325,000 people. The Kimball Avenue store employs 210 workers. Click here to view the citations.
Note: If you are a company with more than one location, take heed of this case study. Being cited at one location in a chain can result in the next citation being handled differently.
EPA Draws Fire on WPS Proposal
EPA's proposed modernization of its agricultural workers protection standard, designed to protect farm workers from pesticide exposure, drew increasing fire this week even as the official comment period on the proposal closed. The rule, not updated since 1992, increases training frequency and updates prevention and treatment requirements in pesticide exposure situations. It also says workers under 16 years old cannot handle any pesticide. EPA estimates the new rules will cost farms about $5 per worker per year, a figure the agency said is the average calculated across all farms without regard to pesticide use or whether they hire outside labor.
On one hand, over 70 Democrat House members told EPA in a letter the proposed rule is too weak, protections should be as stringent as in other work areas, and that the rule contains "serious flaws...that perpetuate inequity and continue to leave the men, women and children who produce our food less protected than other workers." The lawmakers want more stringent requirements for emergencies, child-specific protections, including raising the age limit on handling pesticides from 16 to 18 years old, as well as medical monitoring of workers and protection from retaliation if a worker reports the misuse of a chemical.
On the other hand, the National Association of State Departments of Agriculture (NASDA) compiled the results from a task force of 30 state departments of agriculture who reviewed the proposed rule. NASDA told the agency the current rule works well and that many of the proposed agency changes are covered in existing federal and state law. Further, EPA did not adequately take into account how much the changes will cost the states to implement and urged the agency to rescind the rulemaking and focus "the necessary resources to work with state lead agencies and agriculture stakeholders to enhance the effectiveness of the current worker protection standards."
EPA Forced to Release WOTUS Maps - Details Expansive Plan
House Committee on Science, Space and Technology Chairman Lamar Smith, R-Texas, on Wednesday August 27th, announced the release of maps produced by the EPA that detail all the waters and wetlands of each of the 50 U.S. states. The maps had until Wednesday remained private, but former EPA Deputy Administrator Bob Perciasepe agreed to release them following Smith's requests. According to the National Cattlemen's Beef Association (NCBA), the maps "appear to detail the extent of the Waters of the United States proposal." "These maps show the EPA's plan to control a huge amount of private property across the country," Smith said in a letter sent this week to EPA Administrator Gina McCarthy. "Given the astonishing picture they paint, I understand the EPA's desire to minimize the importance of these maps. But the EPA's posturing cannot explain away the alarming content of these documents." Smith urged McCarthy to release additional information explaining the existence of the maps and why taxpayer money was used to create them, "just days after the EPA announced its Waters of the U.S. rule (WOTUS)." Knowledge of the maps came as the Committee was doing research in preparation for a hearing regarding the proposed WOTUS rule, NCBA said.
"It is deplorable that EPA, which claims to be providing transparency in rulemakings, would intentionally keep from the American public a taxpayer-funded visual representation of the reach of their proposed rule," Ashley McDonald, NCBA environmental counsel, said in a statement. "Unfortunately, it is just another blatant contradiction to the claims of transparency this Administration insists they maintain."
NCBA said the maps show individual states could face upwards of 100,000 additional stream miles that could be regulated under the proposed rule. "This is the smoking gun for agriculture," McDonald said. "These maps show that EPA knew exactly what they were doing and knew exactly how expansive their proposal was before they published it."
Requests have since been sent to EPA asking they keep the public comment period open for at least 60 days to provide adequate opportunity review. The American Farm Bureau Federation is also planning to release its own maps detailing the extent of the WOTUS proposal in September, says American Farm Bureau's Senior Director of Regulatory Relations Don Parrish. The EPA maps are available on the House Science Committee website.
OSHA Extends Comment Period for Injury/Illness Recordkeeping
OSHA has announced it will extend the comment period on the proposed rule to improve the tracking of workplace injuries and illnesses to October 14, 2014. The proposal, published on November 8, 2013, would amend the agency's recordkeeping regulation to add requirements for the electronic submission of injury and illness information that employers are already required to keep.
OSHA is soliciting comments on whether to amend the proposed rule to: 1) require that employers inform their employees of their right to report injuries and illnesses; 2) more clearly communicate that any injury and illness reporting requirements established by the employer must be reasonable and not unduly burdensome; and 3) provide OSHA additional means to prohibit employers from retaliating against employees for reporting injuries and illnesses.
Drivers Beware! Misinformation May Lead to Downgraded CDL
The required use of Medical Examiners (MEs) appearing on the National Registry of Certified Medical Examiners (NRCME) for all interstate driver physical examinations performed as of May 21, 2014, has resulted in a common myth circulating in the transportation industry.
Many drivers and motor carriers have incorrectly come to believe the MEs will submit proof of medical certification to State Driver Licensing Agencies (SDLAs) on behalf of CDL holders. This is untrue. MEs have not been assigned this task. CDL holders that mistakenly believe this is taking place may find their CDLs downgraded if they fail to personally submit the medical examiner's certificate.
Where is this misconception originating? It may have its roots in one of two sources. MEs are required to submit to DOT a monthly report on the exams they have performed during the previous month. This information is submitted on the federal level and is not shared with individual state licensing offices.
The other possible source for the incorrect understanding of the NRCME rule is a proposed rule from May 2013. The DOT's proposed rule would require MEs to submit, on a daily basis, driver physical examination results to the DOT. The proposal calls for the electronic transmission of driver identification, examination results and restriction information from the National Registry system to the SDLAs. However, it is important to note that is still a proposal and the agency has not gone forward with its concept.
DOT Issues New Guidance for Drug Testing Process - Refusals
DOT has issued new guidance explaining when DOT-regulated employees can leave a urine collection site without violating the testing rules. The new question-and-answer guidance clarifies:
  • When a collector may give an employee permission to leave a collection site, and
  • What happens if an employee leaves the collection site before testing is complete.
According to DOT, the new guidance "constitutes official and authoritative guidance and interpretation" concerning its drug and alcohol testing rules in 49 CFR Part 40. The guidance was issued on July 3, 2014, by the DOT's Office of Drug and Alcohol Policy and Compliance. According to the new guidance, the testing process is complete when the chain of custody form (CCF) has been filled out and the urine specimens have been sealed in plastic bags, as specified in Sec. 40.73(a)(1)-(6).
If an employee leaves the collection facility before that process is complete, the collector must inform the employer who then must decide whether the employee's actions constitute a refusal to test. "To make this determination," the guidance states, "the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the employee (i.e., in the event of a medical emergency, copies of hospital admission records/EMS records/police records, etc)."
"The employer must document its decision and the solid reasoning for the decision, in all collection site refusal determinations. Copies of these decisions and the information relied on in making those decisions, must be maintained in accordance with Sec. 40.333 and the applicable modal recordkeeping requirements." The guidance goes on to state that if a DOT auditor finds that the employer has not properly documented their "refusal" determinations, they may be subject to penalties.
OSHA Issues Memo on Temporary Workers
A recent memorandum to OSHA regional administrators describes the agency's policy on the Temporary Worker Initiative (TWI) and promises further enforcement and compliance guidance. The memo is meant to remind OSHA field staff of the agency's longstanding general enforcement policy regarding temporary workers. TWI was launched in April 2013 to focus attention on preventing injuries and illnesses among temporary workers and highlighting employers' responsibilities to protect these workers.
In clarifying employer responsibilities, the memo says it is a fundamental principle that temporary workers are entitled to the same protections under the OSH Act as all other covered workers. The staffing agency and host employer must work together to ensure that OSH Act requirements are fully met and that the temporary worker is provided a safe workplace. This requires effective initial and follow-up communication and a common understanding of the division of responsibilities for safety and health. OSHA compliance officers should review any written contract between the staffing agency and the host employer and determine if it addresses responsibilities for employee safety and health. It should be understood, however, that the contract's allocation of responsibilities may not discharge either party's obligations under the Act.
The memo goes on to describe when a compliance office should open an inspection with a staffing agency. When a temporary worker is exposed to a violation, the compliance officer should make inquiries into the staffing agency's actual or constructive knowledge of the worksite's hazards - whether the staffing agency knew, or with the exercise of reasonable diligence, could have known about the hazards. The officer should review such factors as the terms of the staffing agency-host employer contract, the interaction and communication between the staffing agency and the host employer, the staffing agency's contact with its temporary workers, whether those workers have had any complaints or concerns and whether they have made those concerns known to the employers.
If a temporary worker is or could be exposed to a serious hazard or if the staffing agency does not appear to have taken any actions to learn of the conditions at the host's worksite, then the compliance officer should initiate an inspection with the staffing agency. In all other instances, area directors may decide, based upon the evidence found during the inquiries, whether to open an inspection with the staffing agency. OSHA also plans to release a compliance directive on the TWI.
DOT Proposes Harmonization with International Standards
DOT is proposing to amend the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. Comments must be received by DOT by October 24, 2014.
State Labor Law Poster Updates
California - Whistleblower - Effective currently.
The amendments to the law went into effect January 1, 2014, but the new poster was only recently created and released by the agency. California has released a new version of the Whistleblowers notice. This notice highlights the expanded protections of the Whistleblower Protection Act. Previously, reports made to government agency were protected from retaliation. Under the new revisions, reports made internally (ex. to a supervisor) as well as to a "public body conducting an investigation or hearing" are also protected. Further, it now includes protection for reports of violations of local laws, in addition to previously protected reports of state and federal laws. This is a material substantive change and a new, California All-In-One poster is required. Click here to order.
Maryland - Minimum Wage Notice - Effective 10/1/14
Maryland has released their new notice reflecting the changes to the minimum wage through 2018. The wages are as follows:
Until 12/31/14 - $7.25
Eff. 1/1/15 - $8.00
Eff. 7/1/15 - $8.25
Eff. 7/1/16 - $8.75
Eff. 7/1/17 - $9.25
Eff. 7/1/18 - $10.10
The revision date is listed as 5/14 (even though the poster was only created toward the end of June). The first changes that go into effect on the notice are the county changes, which go into effect on 10/1/14. The poster also makes mention of the upcoming posting requirements for Prince George and Montgomery counties. This is a material substantive change and a new, Maryland All-In-One poster is required. Click here to order.
Minnesota - Minimum Wage Notice on 6/3/14
Minnesota has passed a law increasing the minimum wage over the next few years. The wages will be as follows:
Provision
Current law
New law
Large employer wage
$6.15/hour
$8.00/hour on Aug. 1, 2014
$9.00/hour on Aug. 1, 2015
$9.50/hour on Aug. 1, 2016
Small employer wage
$5.25/hour
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
90-day training wage (under 20 years of age)
$4.90/hour
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
Youth wage (under 18 years of age)
No youth wage
$6.50/hour on Aug. 1, 2014
$7.25/hour on Aug. 1, 2015
$7.75/hour on Aug. 1, 2016
Inflation increase
No inflation increases
Inflation indexing begins Jan. 1, 2018
This is a material substantive change and a new, Minnesota All-In-One poster is required. Click here to order.
Most Noteworthy: Robin Williams
We've lost one of those very special people who had the ability to make us laugh and forget about life's troubles for a while. Robin Williams firmly made his mark in history as one of the greatest actors and comedians who ever lived. Fitting is this line from the movie Watchmen.
"Man goes to doctor. Says he's depressed. Says life is harsh and cruel. Says he feels all alone in a threatening world." Doctor says, "Treatment is simple. The great clown Pagliacci is in town tonight. Go see him. That should pick you up." Man bursts into tears. Says, "But doctor... I am Pagliacci."
While his tragic death is causing tears of sorrow, Williams' life will be most remembered for the times he caused tears of laughter. He had the wonderful ability to delight adults and children alike, with the energetic enthusiasm that he threw into every role. However, some of his most memorable roles were the ones where he could make us happy and sad all in the same moment.
2014 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.