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.