Economical Training

There are many companies that provide training programs, seminars and videos. However, this book was designed for small companies. Large companies that provide training for large corporations charge a lot of money because their training is for large staffs. It is not unusual to pay over $1500 for a single training program. As you will learn, one video is not enough. It is likely that you will pay thousands to train your staff if you plan to acquire all the videos. Here are some ideas on how to cut these costs.

CAE Consultants Inc. specializes in written programs. Some of our plans have simple PC slide shows that can be used for training or refreshers. Call (914)963-3695 to see if we have a written plan for your industry and if it has a PC slide show. 

Insurance company is often a little-known source of FREE training and most businesses don't even know it. Even if you have a small policy with a company like AETNA for example, they will train you free of charge! Courses they provide are very comprehensive. The only requirement is that you send personnel to their site. 

Community colleges and state programs may provide additional low cost sources of training. Check all available resources in your community, including the fire department, the police, your sewage treatment and water system plants. Find out where they train and what it would cost you. 

Local business libraries, society libraries, or trade libraries or non-profit groups in your area may allow you to borrow materials for a period. 

Government training materials are generally less expensive, but not much more. For example, OSHA courses require you to travel to their site and they still run several hundred dollars. You can rent videos from certain companies, like ITS, Their videos are expensive but rentals are quite reasonable. The library of congress may allow borrowing and some State libraries may have materials they can mail to you. Check it out. Local consultants may not be as expensive as you think.

They may have materials ready and their fees to offer several courses could be reasonable, particularly if you combine this with other businesses. Work with your local technical society or chamber of commerce to see if you can do joint training with another group. 

You don't really have to go overboard either. You can use a training video, but in most cases, merely setting down with the employee and conveying the more important concepts of your program is sufficient. You can administer your own test. Just be sure that you record everything and make them sign their training completion forms. 

Where states require training, you are stuck having to take their courses and pay their license fees. In New York, for example, obtaining all of the licenses required to handle asbestos runs over $2,000. It is a way to lock people into a particular training program for which someone has contracted. It leaves some trainers out of the business. If you are a small minority business, see if you can get a grant to train your staff. 

Some states put a lot of taxpayer money in developing programs for their government and federal employees. They may have a program to allow local small businesses to share the cost. Call and check it out. Sometimes you can work a special deal with the program director. If they have empty seats in the classroom why let them go to waste? 

Protecting New Workers

New at the job  

If you are new at your job, your risk of injury is much greater than for your more experienced coworkers-. In fact, the Bureau of Labor Statistics (BLS) has reported that 40% of workers injured had been on the job less than one year.  

Why are new workers more likely to be hurt?  

BLS studies show that employees injured at work often lack one vital tool to protect themselves: information. Look at the following data gathered by BLS in various surveys: 

• Of 724 workers hurt while using scaffolds, 27% said they received no information on safety requirements for installing the kind of scaffold on which they were injured. 

• Of 868 workers who suffered head injuries, 71% said they had no instruction concerning hard hats. 

• Of 554 workers hurt while servicing equipment, 61% said they were not informed about lockout procedures.  

In nearly every type of injury, BLS researchers have studied; the same story is repeated repeatedly. Workers often do not receive the safety information they need - even on jobs involving dangerous equipment where training is clearly essential. In one BLS study of workers injured while operating power saws, nearly one of every five said no safety training on the equipment had been provided. 

This problem deserves immediate attention from both the federal and private sectors. The Occupational Safety and Health Administration (OSHA) want to work with workers, employers, and vocational schools to increase protections for new employees. 

Employees Can't Be Penalized For Reporting A Hazard

Under the Occupational Safety and Health Act, it is against the law for your employer to punish you for reporting a safety or health hazard. You cannot be discriminated against, fired, demoted, or otherwise penalized for complaining to your employer about a hazard, requesting an OSHA inspection, participating in union safety and health activities, or otherwise exercising your rights under the OSHA Act. 

If you believe you have been illegally punished, you must file your complaint with OSHA within 30 days for it to be timely. OSHA can take action, including going to court if necessary, to force your employer to restore your job, earnings, and benefits. You will not have to pay any legal fees. Recent court cases awarded hundreds of thousands of dollars in back pay to employees who charged employers with firing after blowing the whistle. OSHA is very serious about this rule.  

Health Hazards Can Cause Imminent Danger 

Many people think that only safety hazards, which could cause accidents, can be considered imminent dangers. 

It is important to remember that health hazards can cause imminent dangers. Exposure to some toxic substances or dangerous fumes, dusts, or gases can cause irreversible physical harm, shortened life, or reduced physical or mental performance. OSHA may consider such hazards to be imminent dangers even if the health effects of exposure to these hazards do not become immediately apparent. 

Imminent Danger 2.12.1 Employees Can Report Imminent Danger to OSHA

If a health or safety hazard at your workplace puts you in imminent danger of death or a serious injury including situations immediately dangerous to life and health, tell your supervisor immediately.

Ask that the condition be corrected and that no workers be exposed to the danger until it is eliminated or controlled. If your employer does not take steps to remove the danger, you may contact the nearest office of the Occupational Safety and Health Administration (OSHA) or your state occupational safety and health authority. OSHA should be listed under "US. Government, Department of Labor" in your telephone directory. If you live in one of the 25 states or territories which operate their own OSHA programs, you will find the listing under a state government heading such as "Department of Labor" or "Department of Industry."

Tell OSHA the facts. Be specific. Identify the hazard, which concerns you. If you request, OSHA will not reveal your name to your employer, so don't hesitate to give OSHA your name, address, and a telephone number where you can be contacted.

OSHA Responds with Inspection

The director of the closest OSHA area office will review your complaint and immediately decide whether OSHA should make an investigation. If he or she decides that an investigation is necessary, an OSHA inspector or "compliance officer" will conduct an inspection of your workplace--usually the same day you report the problem. Reports of imminent dangers receive the highest priority for OSHA inspections.

If OSHA cannot inspect within one working day after receipt of the report, the area director will contact the employer immediately to request that the hazard be corrected and any affected employees removed from the danger area. An inspection to determine whether the imminent danger has been eliminated will then be conducted at a later time.

Imminent Danger Warning

During an inspection, if compliance officers find an imminent danger, they will ask your employer to correct the hazardous condition and remove endangered employees from the area. If your employer refuses, OSHA may post an "Imminent danger" notice and may seek from the nearest federal district court for an order requiring the employer to remove the danger. Before the OSHA inspectors leave the workplace, they will inform all affected employees of the hazard.

Refusing Dangerous Work 

OSHA can protect you if you are discharged or otherwise disciplined for refusing to perform a task that would expose you to imminent danger of death or serious injury, providing you have sought and been unable to obtain a remedy from your supervisor and there is insufficient time to have the condition corrected through filing a complaint with OSHA. You may also be protected by the National Labor Relations Board (NLRB) if you refuse dangerous work in cooperation with or on behalf of other workers. OSHA and the NLRB cooperate in refusal-to-work cases involving health or safety hazards. You may contact either agency to discuss your case if you have been punished for refusing dangerous work. 

Where to Apply for Variances from OSHA Standards

If the worksites for which variances are sought are under federal OSHA's jurisdiction, applications should be addressed to the Assistant Secretary and sent to OSHA's Office of Variance Determination, 200 Constitution Ave., N.W., Washington, D.C. 20210 (phone: 202/219-7193). The following states are under federal OSHA's jurisdiction: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Trust Territory of the Pacific Islands, Wake Island, West Virginia and Wisconsin. 

If the worksites are in a state or territory with its own approved job safety and health program, variance applications should be made directly to the state OSHA office, usually located in the state department of labor. The following jurisdictions have their own OSHA programs, and are called "state plan states." Alaska, Arizona, California, Connecticut*, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York*, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, and Wyoming. 

Employers with establishments in more than one state may seek multi-state variances. Even if one or more of these states has its own OSHA-approved state safety and health plan, the employer may consolidate the variance applications, address them to the Assistant Secretary and mail them to the Office of Variance Determination. OSHA's variance procedures permit employers with multi-state establishments to use federal OSHA's variance reciprocity procedures where such requests involve state plan standards (or portions thereof), which are identical in substance and requirements to federal standards. Such applications must include:

 (a) A side-by-side comparison of the federal standard and the state standards (or portions thereof) that are identical in substance and requirements; 

(b) A certification that the employer has not filed for such variance on the same material facts for the same employment or place of employment with any state authority having jurisdiction under an approved OSHA plan; and, 

(c) A statement, with appropriate identification and current status, of any citations for violations of the state standard that have been issued to the employer by any of the state authorities enforcing the standard under a plan. 

Upon receipt of a multi-state variance application meeting all requirements, federal OSHA promptly furnishes copies to appropriate state plan states and provides opportunity for comment, including opportunity to participate as a party to the consideration. As parties to the federal variance proceedings, state plan states review applications and reach judgments on establishments in their states in coordination with federal OSHA. Federal OSHA will ensure that each state plan state involved in a multi-state variance request has responded in writing, and the response will be made a part of the variance record. If an individual state concurs in the variance, the approval is reflected in the federal decision on all establishments. If a state objects, it negotiates independently with the employer to resolve any questions. If major differences result, a state may handle that aspect of the variance request under its jurisdiction independent of the multi-state application. 

Once a federal OSHA variance has been granted which applies to more than one state (including a state operating under a state plan), the variance becomes the authoritative interpretation of the employer's compliance obligations. This is true for the federal standard as well as any identical state standard, except where objections have been interposed by state authorities. 

Will OSHA Inspect a Small Business?

Yes, while in the past OSHA was understaffed and under funded, it posed only minimum danger to small businesses. Now, with the Democratic administration, an activist OSHA chief, William Reich and a tough director, John Dear, and new legislative proposals, OSHA inspectors can turn up at your site more often.  

Why are they Picking on Small Business?  

Whether you have just 2 employees or 250, OSHA believes that statistically, more injuries will occur in small businesses than in large ones. This conclusion is supported by a recent Wall Street Journal computer analysis of more than 500,000 federal and state safety inspection records, from 1988 to 1992 shows that 4,337 workers died at inspected workplaces with fewer than 20 employees, while only 127 died at those with more than 2,500.⁵ Of course, the study fails to correct for the fact that there are fewer workplaces in this country left with 2500 employees or more. The study did not report this figure as a percentage of total employees for small vs. large businesses. The fact is that as the economy has changed, so has the American workplace, with fewer manufacturing jobs and more service jobs and small businesses, the regulators are turning to small business to enforce safety.

What are the chances?  

Statistically, OSHA claims they have 2300 inspectors federally and that there are 6.1 million workplaces to inspect. If they inspect 1/2 million workplaces per year or an average of 217 inspections per inspector (1 per day), then your statistical chances are that you might be inspected once every 12 years. However, your chances are much higher than that. First, states carry out inspections of government and private workplaces, if they have an approved plan. Recently four more states got approval. Only New York and Connecticut limit inspections to government facilities. This means that OSHA counts with many more ad hoc inspectors (like a franchise). Some states inspect both government and business sectors and they add their own rules to OSHA. So, in some states like New York, you could be visited by both OSHA and the state labor department of health and even City inspectors get involved sometimes. Each agency cites separately. Federal fines go to the federal treasury and state fines go to the state. States keep their own records of inspections and the Federal Government their own. It is difficult to get hold of statistics that encompass all state and federal inspections and to determine how much money was actually collected in fines. 

In addition, inspecting small workplaces does not take all day and fines are much smaller. Inspectors could easily inspect several small businesses in a day, since they are only checking for a few items. 

They will concentrate on manufacturing places,auto shops and other targeted industries. This means that when it comes to smaller workplace inspections, inspectors can be much more efficient. If they inspected say 2 to 3 small businesses daily, and adjusting for the fact that state inspectors in some industrial areas do part of the work, it seems your chances are about maybe once every 2 years. Certainly if your businesses is within commuting distance of an OSHA field office, your chances are much higher. 

Construction firms, who are visible, are increasing their chances. Chances are that an OSHA inspector will show up at most construction jobs in a town. OSHA claims that the average fine is about $600. Yet, a computer analysis shows that is probably more like their minimum fines. Typically, they run in the thousands and it is our experience that even small construction firms are receiving fines in the tens of thousands. 

Voluntary Safety & Health Program Management Guidelines

The Occupational Safety and Health Administration (OSHA) has issued voluntary program management guidelines to encourage employers to do more than just comply with regulations to prevent occupational injuries and illnesses. 

Although compliance with the law, including specific OSHA standards, is an important objective, an effective program looks beyond specific requirements of law to address all hazards. It seeks to prevent injuries and illnesses, whether or not compliance is at issue. 

The language in these guidelines is general so that it may be broadly applied in general industry, shipyards, marine terminals, and longshoring activities regardless of the size, nature, or complexity of operations. Construction activities are not covered by this guideline because they are already covered under OSHA's construction standards. 

The guidelines, a distillation of successfully applied safety and health management practices, are advocated by safety and health professionals and consultants representing corporations, professional associations, and labor unions.  

The Guidelines  

The guidelines call for systematic identification, evaluation, and prevention or control of general workplace hazards, specific job hazards, and potential hazards, which may arise from foreseeable conditions. 

The extent to which a program is described in writing is less important than how effective it is in practice. As the size of a worksite or the complexity of a hazardous operation increases, however, the need for written guidance increases to ensure clear communication of policies and priorities and consistent and fair application of rules.

OSHA Voluntary Protection Programs

Participation exempts a worksite from OSHA's programmed inspections. However, participation is reserved for very special worksites. 

•Do you have an effective safety and health program? 

•Are your injury and/or illness rate lower than the average for your industry? 

•Do managers and employees work together to prevent accidents and eliminate Hazards? 

•Would you like to develop a more cooperative relationship with OSHA?  

If so, your company may be a candidate for one of OSHA's Voluntary Protection Programs -- Star, Merit or the Demonstration Program. Designed to augment OSHA's enforcement efforts, these programs encourage and recognize excellence in occupational safety and health. Only those companies, which demonstrate commitment to workplace safety and health beyond the requirements of the OSHA standards -- especially at senior management levels -- are eligible. 

General Requirements  

To qualify, you must have an effective, ongoing safety and health program. A strong safety and health program exemplifies commitment to the prevention of occupational illness and injury beyond satisfying the requirements of OSHA standards. It is the central element, which qualifies a company for participation in the Voluntary Protection Programs. Companies participating in Merit and Star are expected to have comprehensive programs including elements such as employee participation and annual comprehensive self-evaluation. OSHA assesses the effectiveness of the program through a number of measures including on-site review.  

Cooperation  

A cooperative atmosphere is essential to make voluntary protection work. Construction companies are required to use a labor-management approach, which includes joint labor-management safety and health committees. General industry sites may use some other form of employee participation. Companies must demonstrate that the collective bargaining agent(s) representing their employees, if any, has (have) no objection to the company's participation. It is important under all Voluntary Protection Programs that both employers and employees recognize that they retain their rights and responsibilities under the Occupational Safety and Health Act.  

Good performance  

Although performance levels required vary with the individual Voluntary Protection Program, the company must demonstrate that its efforts are working to minimize injury and illness in the workplace. Two indicators are the Bureau of Labor Statistics injury incidence and lost workday injury rates. In addition, the company must have demonstrated good faith in any previous dealings 

with OSHA.  

Star Program  

Open to any industry, Star is targeted for a company with comprehensive, successful safety and health programs. Companies that are in the forefront of employee protection as indicated by three-year average incidence and lost workday case rates at or below the national average for their industry may participate. They must also meet requirements for extensive management systems. Because of the changing nature of the worksite, construction firms must maintain strong employee participation in their programs. Star participants are evaluated every three years, although their incident rates are reviewed annually.

Discrimination Protection for Trucking Employees

Surface Transportation Assistance Act of 1982 (STAA), effective January 26, 1983, gives the Secretary of Labor authority to investigate complaints by truckers, mechanics, freight handlers and others involved in interstate trucking who believe they have been discharged or discriminated against for protected safety activities. If your business uses these workers, you are covered.

Since provisions of Section 405 of the STAA covering commercial motor vehicle are similar to nondiscrimination requirements in Section 11(c) of the Occupational Safety and Health Act of 1970, the Secretary has given OSHA responsibility for investigating these complaints. The Section 405 provisions set forth a longer time for filing complaints, permit immediate reinstatement of discharged employees, and authorize compensatory damages and attorney's fees for aggrieved employees whose complaints are substantiated.  

STAA Discrimination Protection  

Section 405 prohibits an employer from firing, demoting or in any other way discriminating against an employee who: 

•Refuses to operate a vehicle which fails to meet safety regulations; 

•Reports violations of vehicle safety requirements; 

•Alleges that he or she has been exposed to significant hazards; or 

•Testifies or otherwise participates in safety related proceedings. 

Employee Protection (Whistle Blower) Provisions

Clean Air Act (Title 42 U.S. Code, Section 7622); Comprehensive Environmental Response, Compensation and Liability Act (Title 42 U.S. Code, Section 9610); Energy Reorganization Act of 1974 (Title 42 U.S. Code, Section 5851); Safe Drinking Water Act (Title 42 U.S. Code, Section 300j-9(i)); Solid Waste Disposal Act (Title 42 U.S. Code, Section 6971); Toxic Substances Control Act (Title 15 U.S. Code, Section 2622); Federal Water Pollution Control Act (Title 33 U.S. Code, Section 1367); 29 CFR 24.  

Who is Covered 

These environmental Acts provide protection from discharge or other discriminatory actions by employers in retaliation for employees' good faith complaints about safety and health hazards in the workplace. The Acts cover all private sector employers.  

Basic Provisions/Requirements  

The employee protection provisions of these Acts prohibit employers from discharging or otherwise discriminating against employees in retaliation for their disclosure of safety and health hazards to the employer or to the appropriate federal agency. They also protect employee participation in formal government proceedings in connection with safety and health hazards. The Acts specifically exclude from protection the disclosure of hazards deliberately caused by an employee. Additionally, the statutes do not protect "frivolous" complaints. Employees have the right under the Acts to refuse to work in hazardous or unsafe situations.

Employees who believe they have been discriminated against in violation of these protective provisions may file a complaint, within 30 days of the alleged violation, with the Employment Standards Administration's Wage and Hour Division.  

Penalties  

Upon receipt of a complaint, the Wage and Hour Division conducts an investigation to determine whether a violation has occurred. When a violation has occurred, the employer is notified of the violation determination and efforts are made to conciliate the situation.

The employer may appeal a violation determination to an administrative law judge, if done within five calendar days of the notification of the determination. The administrative law judge's decision is referred to the Secretary of Labor for a final order. The Secretary may affirm or set aside the administrative law judge's decision. Where the Secretary concludes that a violation has occurred, his/her final order may instruct the employer to take affirmative action to abate the violation and provide for appropriate relief, which may include restoration of back pay, employment status and benefits. The Secretary may also order the employer to provide compensatory damages to the employee. If dissatisfied with the Secretary's decision, the employer may appeal in federal court. Final determinations on violations are enforceable through the courts. The employee is entitled to similar appeal rights under the Acts.  

Relation to State, Local and Other Federal Laws  

The current whistle blower programs do not preempt existing state statutes and common law claims. All provisions contained in the programs are in addition to protection provided by state laws.  

Actual case reported  

Actual court cases where as much as $100,000 in back pay are awarded have been documented. 

OSHA’s definition of “fibers” vs. science

I hate to be so cruel, but this one actually caused a colleague to tear from the laughter! This is the definition in the booklet (Honest!) 

"Fibers are solid particles whose length is several times greater than their diameter, such as asbestos."

Here is an extremely vague, misleading and outright WRONG definition of a fiber! This OSHA definition is the definition of a geometric three-dimensional solid called a "cylinder." Applying OSHA's definition of a fiber, here are some other "fibers" you should not have in the air that your workers breathe:

A flagpole, a worm, a salami, a rope, a pin, a bread stick, a glass rod, and (for those treckies) the probe that invaded the earth in Start Treck V! 

For your benefit, here is Webster's definition of a fiber: "A thread or a structure or object resembling a thread as: 

1) A slender root (as of grass.) 

2) An elongate pairing cell that has at maturity a small lumen and no protoplasm content that is found in many plant organs and is especially well developed in the xylem and phloem of the vascular system and that implants elasticity, flexibility, and tensile strength to the plant or organ.

3) The axis cylinder of a nerve cell with its sheath 

4) One of the structures composing most of the intercellular matrix of ordinary and elastic connective tissues. 

5) A natural or man-made object that has a length usually many hundred or thousand times greater than its width, that possesses considerable tensile strength, pliability, and resistance particularly against heat, some chemicals

OSHA’s definition of a “mist” vs. science

“The term mist is applied to liquid suspended in the atmosphere. Mists are generated by liquids condensing from a vapor back to a liquid or by a liquid being dispersed by splashing or atomizing. Aerosols are also a form of a mist characterized by highly respirable [they mean breathed - respiration does not need lung in strict biological terms], minute liquid particles.”

First, the OSHA author confuses respiration with breathing. While the term "respiratory protection" is often used to refer to protective masks, respiration and breathing are not the same. Respiration is a biological function and it does not have to take place in a lung. Next, the word "minute" is vague and unscientific. While you can see a mist in the harbor and describe as such in standard prose, you need to be more accurate than that when it comes to describing whether a worker is being exposed to a mist in scientific terms. 

Ambient temperature, pressure, humidity of the air and the size of the particle in the mist as well as the composition of the material are all very important to determine how harmful the mist is and whether it qualifies as a mist.

Mists change as ambient temperature changes. A mist can be described generically as micron sized droplets that are suspended in air for a long period because they are not large enough or heavy enough to settle by gravity. Their size changes all the time. As temperature rises, the droplet evaporates and becomes a gas, so it disappears and may no longer be as noxious. As temperature drops particles may coalesce, like rain in clouds, making the mist disappear. For example, a mist of steam in a steam room could cause some people to cough because they are breathing in micron sized liquid droplets of water, which interfere with lungs function, like when a person drowns. However, when cold air is allowed in the room, water droplets coalesce and form large drops and fall to the floor or attach to walls. The air clears visibly. What remains is water vapor or humidity in the air, and no longer causes harm to the lungs. 

Some mists are so fine that they don't coalesce or settle easily and may remain in the air for a long time. These mists are often referred to as fogs. Foggers are used commercially to deliver insecticides. 

How OSHA defines an Industrial Hygienists

“Industrial hygienists play a major role in developing and issuing OSHA standards to protect workers from health hazards associated with toxic chemicals, biological hazards, and harmful physical agents. They provide technical assistance and support to the agency's national and regional offices. OSHA also employs industrial hygienists who assist in setting up field enforcement procedures, and who issue technical interpretations of OSHA regulations and standards.”

Industrial hygienists are your logical choice when getting outside contract help to help you with OSHA compliance. However, please note that OSHA use legalese to directly avoid the issue that OSHA officers are not all industrial hygienists. The field compliance officer does NOT need an industrial hygienist's degree and is trained by OSHA. In fact we conclude from the opening statement in this booklet that 60% are not formally trained in indu

strial hygiene or engineering. An ex-manager from OSHA's New York office told this author that it is not required that OSHA compliance officers have any college degree. I called a number of other offices. It may happen an officer has a degree, but it is not required. In the past, this worked out OK, since the field officer's reports were scrutinized by professionals in the office. Now, apparently, field officers have a freer hand, according to this source. The training of most of these field officers is limited only to what OSHA provides. Typical salary starts at $40,000 and can increase if they meet the standard government requirements for promotion. They have a very good benefit package and a salary that even degreed engineers today envy.

This means that the typical compliance officer goes only by the book in enforcing regulations and follows the OSHA handbooks very closely. Their training is by OSHA and may not really be relevant or based on any actual industrial experience. It is important for the business being inspected to keep this in mind and realize they have to follow the booklets carefully. 

Intentional Torts | Civil Liability

Intentional torts are all “acts” while negligence may consist of either an act or an omission. Some intentional torts are also crimes under federal, state, or local law, and may also be FAR violations. In such a case, the wrongdoer may be not only subject to a fine or imprisonment in a criminal action, but also ordered to pay compensation to the victim in a civil tort action, and fined or subjected to certificate suspension or revocation by the FAA or other federal and state regulatory agencies, all for the same misbehavior. The courts have generally held that this is not double jeopardy, which is prohibited by the Fifth Amendment to the Constitution of the United States, interpreting that provision only to prohibit the government from criminally penalizing a person twice for the same misdeed.

For example, state criminal charges including 110 counts of murder and 110 counts of manslaughter (one of each for each person killed in the crash) were filed against SabreTech, Inc., an airline maintenance contractor that shipped highly flammable oxygen canisters that were improperly packaged and not identified as hazardous material and that caused an in-flight fire, and against several of its employees in connection with the 1996 ValuJet DC-9 crash in the Florida Everglades, a crash that also gave rise to extensive civil litigation and FAA enforcement action. The state criminal action was ultimately settled for a $500,000 fine.

Meanwhile, a federal grand jury indictment charged SabreTech with several criminal violations of the Hazardous Materials Transportation Act in connection with the crash. In that case, the trial judge sentenced SabreTech to pay $2 million in criminal penalties and $9 million in restitution to victim’s families (over and above the civil settlements already reached). This was the first time an aviation business was convicted of criminal charges arising out of a commercial jet airliner crash in the U.S., and some legal analysts suspect that the fine would have been much larger if the company had not already been in bankruptcy at the time. On appeal, the U.S. Court of Appeals overturned the $9 million portion of the sentence for restitution.

In the civil (tort) action, SabreTech and its insurers paid out some $262 million in settlements to the families of the victims. 

In addition, the FAA initiated a $2.23 million civil penalty action against SabreTech for related FAR violations. The company settled that case by a compromise agreement to pay the FAA $1.75 million. 

Medical Certification Considerations in International Operation

Many nations’ airman medical certification standards and requirements differ from those of the United States. Like the FAA, ICAO standards (published as ICAO Annex 1—Personnel Licensing, available online at the ICAO website) recognize three categories of airman medical certificate. But the U.S. and ICAO differ on what medical certificate must accompany what pilot certificate. ICAO requires a Class 1 medical (“medical assessment” in ICAO terminology) for holders of commercial and air transport pilot certificates; Class 2 for private pilots; and Class 3 only for air traffic controllers.

Under U.S. standards in 14 CFR §61.23, the category of current airman medical certificate a pilot must hold depends on the nature of the particular operation. For example, an ATP making a non-commercial flight, such as for personal transportation or recreation, would require only a Class 3 airman medical certificate for that flight. In contrast, under ICAO standards the category of current airman medical standards a pilot requires depends on the category of pilot certificate the individual holds, regardless of the nature of the particular flight operation. 

The National Business Aviation Association (NBAA) reports that while U.S. standards for FAA first and second class airman medical certificates are similar to ICAO’s Class 1, the differing classification structure and standards have historically caused confusion in international flying. As a practical matter, NBAA recommends that pilots (including those serving as second-in-command) operating outside the U.S. and Canada (whose standards are similar) carry a current FAA first class medical certificate. Otherwise, a foreign inspector may require the crew to bring in a replacement or replacements holding current FAA first class medicals to operate the aircraft.

Appeal for FAA Certified When You Don’t Meet the Standards

If you receive a final denial of your application for a medical certificate from the FAA or the FAA issues an order of suspension or revocation of your existing medical certificate, you can appeal the decision to the NTSB. Your appeal will be heard by one of the board’s administrative law judges, like the hearing you would receive on appeal of an enforcement case.

If the appeal is from an FAA order suspending or revoking your medical certificate, the FAA has the burden of proving by a preponderance of the evidence that you are not medically qualified. In the case of an FAA denial of your application for medical certificate, however, you have the burden of proving (again, by a preponderance of the evidence), through the sworn in-person testimony of qualified physicians supported by copies of your medical records, that you are qualified. In either case, if you convince the ALJ, the NTSB can order the FAA to issue you a medical certificate or set aside the FAA’s order suspending or revoking your current medical certificate.

From the ALJ, the route of appeal goes to the full board, court of appeals, and Supreme Court under the same procedures described for enforcement cases.

Not all cases of denial, suspension, or revocation of a medical certificate are appropriate for appeal. If you have a history or diagnosis of one of the specific disqualifying conditions, and there is no real question that the history or diagnosis is accurate, appeal to the NTSB is futile. In that situation, the petition for special issuance is the only process by which you can have any hope of obtaining your medical certificate. If, however, the FAA position is based upon an erroneous or a subjective application of the catch-all conditions, an appeal to the NTSB may succeed. If your physicians testify convincingly that your physical condition does not make you an especially risky pilot or that the medication or treatment you are taking is unlikely to interfere with your safe performance in flight, the NTSB may overrule the FAA.

Getting FAA Reconsideration Certified When You Don’t Meet the Standards

Upon review of your application and completion of your examination, your AME has three alternative courses of action available:

(1) if you appear qualified, issue the medical certificate;

(2) if your qualifications are in question, defer the certification decision to FAA superiors, who review the question and decide whether to issue or deny your certificate; or

(3) if you appear disqualified, deny your application.

If your AME defers issuance, the review process begins automatically without further action on your part, but if your AME denies you a medical certificate, you must request that he issue you a denial slip and forward your application to the FAA Aeromedical Certification Branch in Oklahoma City for reconsideration of the denial. If this step is not taken, you are considered to have withdrawn your application for a medical certificate.

If the Oklahoma City office also denies your application, it may be necessary for you to request further reconsideration by the Federal Air Surgeon in Washington, D.C., in order to preserve your appeal rights.

According to the U.S. Government Accountability Office (GAO), each year about 400,000 candidates apply for an FAA airman medical certificate and complete the medical exam to determine whether they meet FAA medical standards. On average, about 90 percent are certified by their AME or regional flight surgeon. Of the remaining applicants, about 8.5 percent receive a special issuance medical certificate, while only about 1.2 percent are not medically certified as fit to fly.

Getting FAA Certified When You Don’t Meet the Standards

You may have a “history or diagnosis” of one of those specific disqualifying conditions or otherwise fail to meet Part 67 standards but now present no special risk. Perhaps you had a heart attack but then underwent heart surgery, quit smoking, went on a low cholesterol diet, and are following a good exercise regimen so that you are now no more likely to have another heart attack than anyone else of your age. Maybe you were able to beat an alcohol or drug habit. Maybe the history or diagnosis was erroneous (doctors are human and sometimes make mistakes too). Or perhaps the Federal Air Surgeon has disqualified you because in his opinion your condition, medication, or current course of treatment is incompatible with safe flying. Your treating physicians may strongly disagree with the Federal Air Surgeon’s opinion. Shouldn’t you be free to fly? Yes, and if you can convince the FAA that despite your medical history you are now fit to fly, you can.

Statement of Demonstrated Ability (SODA)

Pilots who have a static disability that is not expected to worsen may be certified through a process referred to as a Statement of Demonstrated Ability (SODA).

Let’s start with the easiest ones: vision and hearing problems. If your vision doesn’t meet FAA standards without eyeglasses or contact lenses but does with these lenses, all that may be required is for your AME to add this limitation to your medical certificate: “Holder shall wear correcting lenses while exercising the privileges of his/her airman certificate.”

If you failed the color vision test, you may be able to get your medical certificate by arranging a test to determine whether you are able to distinguish between the red, green, and white of the control tower light gun that would give you directions in the event of a radio failure. If you can, you get your medical certificate even if your color vision isn’t perfect. If your hearing is below standards but you can demonstrate that you can still hear and understand ATC instructions and flight deck conversation, you should be able to get your medical certificate, although it may have a limitation on it requiring you to use a noise-canceling headset while flying.

If you have a below-the-knee amputation of a leg, but have a prosthetic limb which generally enables you to function normally, and your AME is of the opinion that this would present no problem with operating the aircraft’s controls, she has authority to issue you a student pilot certificate with the limitation “For Student Pilot Purposes Only” to enable you to take a checkride with an FAA examiner. If you pass the checkride by demonstrating that you are in fact able to operate all of the aircraft’s controls despite your disability, you will be issued a SODA.

Special Issuance

If your problem is a history or diagnosis of one of the specific disqualifying conditions listed above, but you can prove that in spite of that history you are unlikely to become suddenly incapacitated while flying (or to fly irresponsibly), you may obtain an FAA medical certificate by “special issuance.” The burden will be on you and your doctors to convince the Federal Air Surgeon that you are now an acceptable risk to flight safety. If you succeed, the Federal Air Surgeon has the discretionary authority to issue you any class of medical certificate by special issuance, even though you don’t meet the letter of the law. Long a tedious, time-consuming, and frustrating bureaucratic process, the Federal Air Surgeon has delegated special issuance authority for certain medical conditions to the AME under new published guidelines called “Certificates an AME Can Issue (CACI).” This allows an AME the discretion to issue a medical certificate to applicants with arthritis, asthma, glaucoma, chronic hepatitis C, hypertension, hypothyroidism, migraine and chronic headache, pre-diabetes and renal (kidney) cancer. This delegation has simplified and expedited certification for many airmen, and this list is likely to continue to expand.

One exception to the possibility of certification through the special issuance process is the diabetic who requires insulin injections to control the disease. The FAA long considered insulin-treated diabetes mellitus (ITDM) absolutely disqualifying for any class of medical certificate. No special issuance medical certificates of any class were granted to individuals with ITDM. In response to a petition from the American Diabetes Association, the FAA has opened third-class aviation medical certification by special issuance to individuals with IDTM who haven’t experienced any further complications, such as heart or kidney disease, neurological abnormalities, or vision problems. The conditions for special issuance to individuals with ITDM, which include stringent monitoring requirements, are available on the FAA’s website. This change has opened up the joy and freedom of personal flying (under a student, recreational or private pilot certificate) to hundreds of such individuals, at this writing. Flight operations by these individuals are, however, limited to the United States, as ICAO has yet to adopt comparable rules. It continues to be the FAA’s position that individuals with ITDM still pose too great a risk of sudden incapacitation to allow first or second-class medical certification as would allow them to carry passengers for hire.

Periodic renewal of medical certificates issued under this special issuance process, once as slow and cumbersome as getting the first special issuance, is now being expedited under the FAA’s “Quick-Cert” program.

This program is part of the Federal Air Surgeon’s goal to provide “same-day medical certification” to qualified applicants.

According to the NTSB, medical causes are a factor in only about 2.5 percent of civil aviation accidents in the United States. The safety record of pilots operating under specially issued medical certificates has proven every bit as good as that of the general pilot population over the years, so this increasingly enlightened and humane process of personalized evaluation is likely to remain a feature of aviation medical certification.

FAA Health Standards

Doctors and lawyers tend to communicate with their respective colleagues in their own professional languages, which are often largely unintelligible to outsiders. 14 CFR Part 67, which describes the medical standards and certification procedures for aviators, was written by doctors and lawyers in a not particularly readable mixture of the languages of both professions. To make sense of the specific FAA medical standards, it is helpful to bear in mind that each of these standards was designed to enable the FAA to answer the following basic questions about your health:

1.       Can you see well enough to control the aircraft, see and avoid other aircraft, distinguish runways from taxiways at night, and recognize light gun signals in the event of radio failure?

2.       Can you speak and hear well enough to effectively converse with other crewmembers on a noisy flight deck and with air traffic controllers?

3.       Are you likely to suffer disorienting vertigo or loss of equilibrium in flight?

4.       Are you likely to suffer a suddenly incapacitating medical event in flight?

5.       Are you likely to operate an aircraft irresponsibly so as to endanger other people?

The specific medical standards are designed so that if you have any medical condition that would result in an unfavorable answer to any of these basic questions, you are not qualified for an FAA medical certificate. Therefore, your aviation medical examiner (AME) should not issue you a medical certificate if you fail to pass the hearing and vision requirements of Part 67 or if you have a history or diagnosis of any of the following “specific disqualifying conditions”:

1.       Diabetes requiring insulin or other hypoglycemic medication for control. (If your diabetes can be controlled by careful attention to diet, you are not disqualified.)

2. Heart attack (myocardial infarction).

3. Angina pectoris (the crushing chest pain that is your clue that you are having a heart attack).

4. Other evidence of coronary artery disease (such as an irregular electrocardiogram (EKG).

5. Heart valve replacement.

6. Permanent cardiac pacemaker implantation.

7. Heart replacement (transplant).

8. A psychosis.

9. A personality disorder that has repeatedly manifested itself by overt acts.

10. A bipolar disorder (formerly known as manic depressive disorder).

11. Epilepsy.

12. A disturbance of consciousness without a satisfactory medical explanation of the cause.

13. A transient loss of control of nervous system function(s) without a satisfactory medical explanation of the cause (such as a so-called transient ischemic attack).

14. Substance dependence, abuse or misuse (including alcohol and a wide variety of drugs and controlled substances) within the previous 2 years.

Compare these “specific disqualifying conditions” to the previous basic questions the FAA is trying to answer about your health. The vision standards are designed to be sure that you can see well enough to control the aircraft, see and avoid other aircraft, distinguish runways from taxiways at night, and recognize light gun signals in the event of radio failure. Hearing and speech standards are to ensure you can communicate with other flight crewmembers on a noisy flight deck and with air traffic controllers.

Concern for risk of sudden and unpredictable in-flight incapacitation compels your AME to disqualify you if you have diabetes requiring insulin (putting you at risk of incapacitation by insulin shock), have suffered a heart attack or have coronary artery disease (which can lead to an incapacitating heart attack). The same concern requires your AME to disqualify you if are epileptic, or have experienced a loss of consciousness without a satisfactory medical explanation (so that your next seizure might happen while you’re at the controls of an aircraft in flight).

Concern over potential irresponsible operation of aircraft endangering others disqualifies people having a psychosis or other psychiatric problems that have led to irrational behavior, as well as substance abusers.

A “history or diagnosis” of any one of the specific disqualifying conditions prevents your AME from issuing you an FAA medical certificate regardless of how good your health may otherwise appear during the examination.

There are also catch-all subparagraphs that disqualify you for any other physical condition that in the opinion of the Federal Air Surgeon could make it unsafe for you to exercise airman certificate privileges, or if you are taking any medication or undergoing any course of treatment that could adversely affect your performance.

Some examples of physical conditions the Federal Air Surgeon has found disqualifying under this “other physical condition” catch-all, depending on severity and treatment, include arthritis, asthma, chronic lymphocytic leukemia, colitis, colon cancer, glaucoma and ocular hypertension, hepatitis C, hyperthyroidism, hypothyroidism, lymphoma and Hodgkin’s disease, migraine syndrome, prostate cancer, sleep apnea, and urolithiasis (kidney stones).

Some examples of medications the Federal Air Surgeon presently considers disqualifying include antidepressant or serotonin blocker drugs (SSRIs) such as Prozac, Paxil, and Zoloft.

Aviation Medical Cases

In the United States, you must hold a current FAA airman medical certificate in order to serve as a pilot or air traffic control tower operator. The exceptions are that glider and balloon pilots may self-certify that they have no known medical defects which would make them unable to pilot one of these aircraft, and a sport pilot candidate is not required to possess an FAA airman medical certificate but may use a valid U.S. driver’s license as proof of medical fitness. Any restriction on the driver’s license becomes a medical restriction for exercising sport pilot privileges. 

If the previously mentioned proposed Pilot’s Bill of Rights 2 is enacted into law, those relaxed medical certification standards now in place for sport pilots will be expanded to cover all pilots operating aircraft with a maximum certified gross take- off weight of no more than 6,000 lbs with no more than 5 passengers or 6 occu- pants (“covered aircraft”), at or below 14,000 feet above mean sea level and at an airspeed not to exceed 250 knots, whether IFR or VFR, as long as no passenger or property is being carried for compensation. This proposal is intended to help re- verse the current steeply declining number of active U.S. general aviation pilots.

The FAA’s scrutiny of applications for medical certification is heightening with increasing accumulation of medical and related data on individuals in computer data banks of various government agencies and increasing cross-matching of this data between agencies. For example, in order to obtain an FAA medical certificate, you are now required to give the FAA written permission to access your driving record file in the National Driver Registry (NDR) database of traffic violations. NDR data is routinely cross-matched with information you provide on your application for an FAA airman medical certificate. Other data in the possession of federal agencies has also been cross-matched with FAA airman medical certificate application data and used for enforcement purposes. This trend is likely to grow in this new era of big data. Aviators who are unaware of this process and the potential consequences frequently succumb to the temptation to be less than candid on applications for medical certification, with immediate and catastrophic results to their aviation careers. Personal, financial, or employer-imposed pressures may also lead a person who is not fully cognizant of the possible consequences to act as a pilot or required crew member at a time when medically disqualified. The purpose of this chapter is to ensure that you have a practical working knowledge of how to analyze various aeromedical problems and dilemmas and arrive at the best solution or course of action.

I often see a classified ad listing an aircraft for sale that tells a tale of tragedy of Shakespearean depth encapsulated in the succinct phrase: Must sell, lost medical.

It’s not often that I’m moved almost to tears by Trade-A-Plane but that one gets me every time. I always want to call the seller up and say, “Wait! Before you sell your aircraft, are you sure you’ve done everything possible to get your medical certificate back?” You see, you don’t always have to take no for a final decision.

Sometimes the FAA can be persuaded to change its mind and reinstate your medical and in some circumstances the NTSB can order the FAA to issue or rein- state your medical certificate. We will now examine how the medical certification process and appeal procedure works. The procedure is very different from that of enforcement cases in important respects.