Tag Archives: osha

5 Tips for Avoiding Personal Injury Claims

According to the Occupational Safety and Health Administration (OSHA), workplace injuries have a major impact on an organization’s bottom line, causing the employer to bear expenses related to workers’ compensation, medical treatment, legal services, repairing damaged property and so on.

Personal injury lawsuits are convoluted, putting your business at a risk of fines and expensive lawsuits. Moreover, personal injury laws differ in every state in terms of the type of injuries they cover and the reimbursements offered.

For instance, the law enables personal injury lawyers in Chicago to cover everything, from the carpal tunnel syndrome in offices to spinal cord injuries on manufacturing and construction sites. Thus, victims of a workplace accident have everything to gain.

Consequently, it is important for business owners to promote an environment of safety and security in the workplace, thereby reducing the total number of personal injury claims.

Here are five effective tips that will help you protect your business from personal injury claims.

1. Pre-empt Workplace Accidents

Accidents in a workplace are erratic and unpredictable. Therefore, it is wise to pre-empt the potential safety risks and implement measures to avoid dealing with the aftermath of an injury episode.

Every business has a unique set of safety concerns that need to be addressed in time. Identify and tackle the safety vulnerabilities for your business and develop strategies to avoid such setbacks.

A business owner is responsible for the maintenance of the office premises and equipment. Hire a building inspector to identify and fix structural issues like loose railings and broken staircases that may lead to accidents. Schedule regular repairs and maintenance to keep your commercial property safe for employees, visitors and customers and protect your business from personal injury claims.
Clutter is a potential safety hazard. Keep high-traffic areas like aisles and stairways free of boxes and waste paper to minimize the possibilities of accidents and falls.

Workplace driving accidents cost employers an average of $60 billion per year. Make sure all vehicles used for business purposes are thoroughly inspected, repaired and maintained on a regular basis to avoid any accidents in transit.

Do not encourage overtime working. More often than not, overworked employees suffer from mental and physical exhaustion, increasing the chances of workplace accidents and injuries. Make sure you have adequate staff to improve the productivity and maintain a safe work environment for all.

See also: When Workplace Safety Is Core…  

2. Create a Successful Employee Safety Program

According to OSHA, educating employees about accident and emergency response and other safety measures can reduce workplace injuries and disabilities by as much as 60%.

Conduct pre-employment tests to screen the most efficient, skilled and qualified individuals for the job. Train your workforce to follow safety practices and identify, report and effectively manage site-specific hazards, thereby empowering them to make safe choices.

Analyze your workplace for safety hazards and take effective steps to eliminate or control them. If you operate in the heavy machinery, construction or hazardous chemicals domain, make sure your workforce is using the proper safety equipment and protective gear.

In an office environment, make sure the housekeeping staff keeps the aisle free of debris and spills, reducing the risk of falls. Moreover, follow the ergonomic workplace standards that promote employee productivity, safety and well-being.

Routine safety and evacuation drills prepare employees for dealing with natural calamities like tornadoes, earthquakes and fire. It is critical to reinforce the safety measures at all employee meetings and training sessions.

Encourage a culture of safety by stressing the importance of complying with safety standards, thereby reducing the risk of workplace accidents and protecting your business from personal injury claims.

3. Invest in General Liability and Property Insurance

When accidents occur at the workplace, the injured employees, customers or visitors can easily file a personal injury lawsuit, imposing heavy fines on the business and damaging its reputation. Investing in liability insurance, however, can alleviate the financial burden of these lawsuits and maximize security for your business.

Thus, when faced with personal injury claims of negligence, property damage, libel, slander and advertising injury, you can rely on general liability insurance to protect your business against such claims and cover your legal fees and the medical and miscellaneous expenses.

To protect your company’s building and physical assets against fire, theft and accidental damage, it is advisable to invest in a liability insurance policy that includes property insurance.

4. Hire an Expert Business and Commercial Litigation Attorney

Personal injury claims not only cost the business money but also put its reputation at stake. Whether you own a small or a medium-sized enterprise or a large organization, it is critical to hire a business and commercial litigation expert who can offer you valuable insights when signing contracts and settling claims.

Personal injury lawyers know the personal injury claim process like the back of their hands and are updated on the latest health and safety laws. Thus, they can effectively represent you in court and advise you on the next steps, thereby ensuring that your business is adequately protected against such claims.

5. Know What to Do Once an Accident Has Occurred

Despite safety precautions, workplace accidents do occur, resulting in personal injury claims against the employer. When an accident occurs in your business premise, injuring one or more employees, you should know how to handle the situation.

First things first, seek emergency help for the people involved in the accident. Secondly, get in touch with your attorney, who can help you manage this situation in a professional manner.

Investigate the sequence of events that led to the mishap and record it in the form of pictures and videos. Ask the employees who witnessed the incident to give you a recorded statement about the accident and remember to note their names and contact details.

See also: Workplace Wearables: New Use of Big Data  

Take Home Message

As a business owner, you should always be prepared for dealing with all unexpected events, including workplace injuries. Because personal injury claims severely damage the company’s reputation and eat into its bottom line, the best defense is to take pre-emptive, preventative steps toward minimizing the incidence of workplace accidents, thereby securing the business from such risks.
The information shared in this post will help you create a safe work environment for your employees and protect your business from pricey personal injury claims.

Top OSHA Trends Facing Employers

OSHA is in something of a holding pattern while it awaits a new administrator. Nevertheless, now is not the time for employers to let their guards down.

The agency has operated under the acting leadership of Loren Sweatt since July 2017. The president’s October nomination of Scott Mugno, vice president of safety at FedEx Ground, to be the next OSHA administrator continues to be delayed amid political wrangling. With many career agency personnel in place, enforcement looks similar to the Obama administration in many ways.

Overall Trends

“Confusion, compliance and anticipation” is the phrase that best sums up OSHA during the first year-and-a-half of the new administration. There have been delays in enforcement and effective dates for some regulations; however, OSHA has not retreated from inspections or enforcement activities.

Expectations for a more business-friendly environment under the Trump administration have yet to materialize, although there have been signs that there will, ultimately, be moves toward deregulation and less aggressive enforcement.

No long-standing regulations have yet been repealed, which is not surprising, given the lack of a permanent leader and the fact that OSHA regulations cannot be revoked solely for economic reasons.

However, we have seen activity on regulations that were already in process. They are among the clear indications that the Trump administration plans to take a different tone than the Obama administration:

2-for-1 Requirement. The president’s signature on Executive Order 13771 requires agencies to eliminate two regulations for every one promulgated.

Rule changes. The president employed the rarely used Congressional Review Act to repeal 14 regulations, including:

  1. The Volks Act. The president effectively overturned the rule that made recordkeeping requirements a continuing obligation for employers. Essentially, OSHA had the ability to enforce recordkeeping requirements for five-and-a-half years, rather than six months.
  2. Fair Pay and Safe Workplaces Rule. The president signed a resolution that blocked the Obama-era rule requiring federal contractors to disclose and correct serious safety and other labor law violations.

Rule movement. Several OSHA rules have been moved to “long-term actions” or completely eliminated from the administration’s first two regulatory agendas.

  • 1. Removed from regulatory agendas:
    • Vehicle backing hazards
    • Updates to chemical permissible exposure limits (PELs)
    • Comprehensive combustible dust rule
    • Hearing protection in construction
  • 2. Moved to long-term actions, essentially putting them on an indefinite delay:
    • Workplace violence
    • Emergency preparedness and response
    • Process safety management (PSM) rule reform
    • Infectious diseases in healthcare

Another signal of the Trump administration’s intentions toward deregulation is the changing of the name “Regulatory Agenda” to “Unified Agenda of Federal Regulatory and Deregulatory Actions.”

See also: Health Consumerism, Stress Management  

Controversial Initiatives

Employers need to be aware of several regulations in the pipeline to ensure they understand and comply with the requirements.

Electronic Recordkeeping

OSHA’s effort to improve tracking of workplace injuries and illnesses requires certain employers to electronically submit data they are already required to keep. But there has been significant confusion and consternation over the standard. One issue is the implementation schedule.

There are clear indications that OSHA intends to amend this rule to ease some of the requirements on employers. As it appears now, the deadlines are:

July 1, 2018: Employers with 250 or more workers, and those with 20 – 249 employees in “high-hazard industries,” must electronically submit information from their 300A annual summaries of work-related injuries and illnesses.

March 2, 2019: Every establishment must submit information from their 300A summaries. The rule has been fraught with controversy and questions, such as:

  • Where will OSHA put the information? There are concerns that employers’ information may become publicly available. However, if the agency opts not to collect the 300 logs and 301 forms as expected, that concern would be eliminated.
  • How will OSHA use the information? With data on fatalities, amputations, hospitalizations and other factors available on computers, OSHA compliance officers could determine inspection priorities based on that information. But there are indications that the Trump administration may back off from the forceful enforcement mentality.

OSHA’s about-face: The agency recently announced that employers in all states must electronically submit their data for calendar year 2017 by July 1. This caught many by surprise, as several states with OSHA-approved state plans had not yet updated their recordkeeping requirements and employers in those states were under no such requirements. Additionally, the announcement means that the states involved are now under a greater regulatory compliance burden.

Silica

OSHA established a new eight-hour weighted average PEL on silica for affected industries. The construction sector was first up in September, although the agency delayed enforcement for one month.

The agency will begin enforcing the rule for general industry on June 23, including training requirements. While there is a chance the deadline will be delayed, employers should nevertheless be prepared to comply.

Fall Protection

The Walking/Working Surfaces Rule has caught many employers by surprise. The rule went into effect in January 2017, and OSHA is strongly enforcing it.

To date, OSHA has cited and imposed hefty fines on at least 12 employers for violating the rule, despite having no associated injuries. For example:

  • One employer was penalized $114,000 for failing to ensure each surface could support a maximum load.
  • Another was fined $36,000 for failure to guard unprotected sides and edges at a height of at least four feet.

Despite some confusion surrounding this rule, we can expect OSHA to inspect and cite companies for violations. Employers should research how they are affected and what they need to do.

Beryllium

As of May 11, affected employers were required to abide by new PELs and short-term exposure limits.

On a positive note, the agency recently clarified that the rule only applies to areas where there are significant amounts of beryllium, rather than just trace amounts. That will save on business compliance costs, and it eliminates some of the vagueness of the rule.

Enforcement

The public shaming via press releases under former OSHA Administrator David Michaels subsided in 2017, but there seems to be a renewed effort in 2018. One recent example was the announcement of a $40,000 fine imposed for trenching operation violations that OSHA officials discovered while doing a drive-by of a construction site.

Additionally, there has been an unexpected slight uptick in inspections in 2017. Combined with the congressionally mandated increase in penalties in 2016, it means employers need to pay attention. Again, the increased number of inspections may be due to the fact that career OSHA personnel are operating with no official leader.

Look-back period: This is an issue to watch closely, to see if the administration may decrease the look-back period for violations that OSHA can use for repeat violations. The previous three-year period was expanded to five years during the Obama administration. Also during the Obama administration, repeat violations were cited more frequently and with higher fines. A recent court ruling in New York said the look-back period is non-binding. That does not bode well for employers that have enhanced their programs and are doing the right thing, only to have the agency cite them for violations that occurred years ago.

Another change under the previous administration was the consideration of workplaces as being under the same corporate umbrella. Previously, workplaces were deemed individual, stand-alone establishments, regardless of the parent company.

We believe the administration will eventually roll the look-back period to three years and consider workplaces to be individual establishments again. However, this may not happen until late this year or beyond, as these changes likely will not be an immediate priority for the new OSHA administrator.

Compliance Assistance

We have seen a clear focus lately on helping employers comply with OSHA regulations, rather than the “enforcement, enforcement, enforcement” effort of previous administrations. There have already been announcements of new alliances between OSHA and various industries or organizations, including one with the Board of Certified Safety Professionals. We expect efforts to provide more assistance and guidance to continue, possibly through the use of “letters of interpretation” to change the tone to one of more compliance assistance.

The Voluntary Protection Program (VPP) was not a favorite of the previous administration. It was viewed as too easy to get in, and difficult to expel companies. But the Trump administration already held a stakeholders meeting to discuss revitalizing the program. Topics included ways to:

  • Encourage participation
  • Ease entry
  • Enhance the benefits
  • Engage network members

One concern, however, is whether there will be enough funding to support these compliance assistance programs. Positions that were eliminated two years ago would need to be resurrected.

State Plans

Twenty-two states have their own OSHA-type programs, and there has definitely been an increase in activity — especially in some of the blue states. California, for example, has hired a number of enforcement officers. That state is also implementing a workplace violence standard for healthcare and an injury prevention rule for hotel and housekeeping. Additional proposals in California may be approved. Washington and Oregon are also taking steps that are stronger than the federal OSHA requirements.

One concern for employers is the patchwork of compliance among states that are failing to meet OSHA-required deadlines. Maryland, Arizona, Hawaii, Utah and Wyoming, for example, have not adopted a silica rule, despite the requirement to do so by late 2016. Even if these states lack appropriate funding, they could easily adopt the federal rule — but have chosen not to. We may see the agency step in as it did with the electronic recordkeeping rule recently.

See also: Healthcare: Need for Transparency  

Dates to Remember

Employers need to ensure compliance for the following:

Beryllium — March 12: Employers had to comply with the majority of requirements.

Silica — June 23: 

  • General industry and maritime employers must be in compliance with all requirements except action-level triggers for medical surveillance; they must also offer medical exams to employees with exposure above PEL for 30 days or more in a year.
  • Construction employers must comply with methods of sample analysis.

Electronic Recordkeeping — July 1: 

  • Companies with 250-plus employees must electronically submit 300A data.
  • Certain high-risk establishments with 20 – 249 employees must submit 300A forms.

Cranes and Derricks — Nov. 10: Crane operators must be certified

Walking/Working Surfaces – Nov. 19:

  • New fixed ladders greater than 24 feet must be installed with fall arrest or ladder safety systems.
  • Existing ladders greater than 24 feet must be equipped with cage, well, personal fall arrest systems or ladder safety systems.
  • Replacement ladders and ladder sections must be installed with fall arrest or ladder safety systems.

Game Changer for Incident Reporting

With new OSHA electronic incident-reporting requirements ready to go into effect later this year, the time to focus on workplace safety data collection is now.

Recently, I came across a video that went viral a couple of years ago of a worker climbing an enormous TV tower in South Dakota—to change a light bulb. Safely I might add.

If you have a fear of heights, the video recorded by a drone might be uncomfortable to watch, but I can tell you that the man appears to follow best safety practices by continuing to hook the bars above him with his carabiners as he makes his ascent to the top of the structure, which stands the equivalent of five football fields—1,500 feet—above the ground.

The video is a good reminder that there are scores of workers performing dangerous jobs every day—from miners to deep-sea fishermen and everything in between—who put their health and safety at risk at work.

However, even in what normally would be considered a safer work environment, accidents and even deaths occur as well. In one recent example, a teenager from Streator, Illinois, died while collecting samples from a rail car after he accidentally came in contact with power lines near the train tracks, according to the local Pantagraph newspaper. Overall, there were 2.9 million nonfatal workplace injuries and illnesses reported in 2015 and 4,800 deaths, according to the U.S. Bureau of Labor Statistics, the most recent data available.

Insurance companies in particular have a vested interest in ensuring their clients—the companies that offer their workers insurance for health, life, workers’ compensation, etc.—do everything in their power to ensure their workers stay safe at work. An injury or death can lead to five-, six- and even seven-figure insurance payouts and not to mention potential lawsuits that could hit insurers through liability insurance.

See also: Setting the Record Straight on Big Data  

To help keep workers safe on the job, the U.S. Occupational Safety and Health Administration recently released new rules for companies to track their workers’ incidents and illnesses electronically through an OSHA reporting portal. Initially, the reporting requirement for certain employers was scheduled to go into effect July 1, but a recent proposed rule in the Federal Register pushed that date back to Dec. 1. Even so, OSHA has already opened the Injury Tracking Application portal for companies with more than 250 employees or smaller firms working in industries with “historically high rates of occupational injuries and illnesses” to start tracking their work-related incidents. According to OSHA, it takes about 20 minutes to log each incident, which includes “the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.”

While the filing extension should give companies a chance to catch their breath, there’s really not much time to get a compliance process in place. A recent Sphera and EHS Daily Advisor survey of more than 400 Environmental Health & Safety executives found that about half (46 percent) of respondents have begun the process of addressing the e-reporting requirements. On the other hand, 44 percent said they have not.

It’s important to note that OSHA has required safety-related recordkeeping for decades—even if OSHA recently changed course on the so-called Volks rule, which would have required companies to maintain safety records for five years rather than six months. The new part of the OSHA recordkeeping requirement is the electronic submission process, which, the agency says, will enable it to analyze safety-related data and “use its enforcement and compliance assistance resources more efficiently.”

But whether it’s at the government or corporate level, being able to analyze and preferably benchmark workplace safety data puts companies at a distinct advantage not only for keeping workers safe—which is the top priority—but also improving the company’s bottom line. When aluminum-maker Alcoa’s former CEO challenged the company to a goal of zero work-related accidents a few years ago, for instance, the company’s earnings jumped 600 percent over a five-year period and sales grew 15 percent per year. And a large component of that safety initiative was data collection.

With the amount of technology available today, especially mobile applications, companies have more tools than ever for data collection. That’s why it’s a bit surprising that only 1 out of 5 (21 percent) respondents to the Sphera-EHS survey said their workers use mobile apps to collect data on incidents. Compare that to the 46 percent who said that their employees manually type information into a web-based application, 56 percent who said their staff email or fax the information, and 74 percent who said their personnel orally report the information to an operator or supervisor.

In other words, many companies are missing a huge opportunity to collect data quickly and more accurately with mobile software for safety-related purposes.

Indeed, field workers who don’t have access to mobile technology to record events are at a disadvantage in documenting the details of an incident or near-miss. At best, they would likely have to write things down and then enter the details into a computer later or tell their supervisors when they see them in person or possibly over the phone, which could lead to a “telephone game”-like scenario where the details change as the information gets passed on. But any type of reporting delay or secondhand chronicling could compromise the usefulness and accuracy of the event data.

Being able to take pictures and notes and enter them into a database gives companies a more accurate picture of the event or safety hazard.

It should be noted that OSHA’s new e-reporting rules don’t address near-misses, but it is worth pointing out that 77 percent of the respondents to our survey said that their workers make those types of reports via verbal updates to their supervisors. Additionally, 57 percent of respondents said those near-miss records are maintained in paper form. (Note: respondents could choose more than one option here.)

On the other hand, it is encouraging that about half of those surveyed (47 percent) said they plan to use collected data for benchmarking purposes to ensure they are keeping up with the Joneses of the corporate world if you will in terms of keeping workers safe. To do that properly, companies will need more inputted data, and oral and written records are much more difficult to manage in that regard. Timely and accurate data entered into a risk-management solution will give companies the data they need to ensure their safety processes are working and where the greater risks in the organization lie so they can be addressed.

With proper solutions and systems in place, any fears of so-called “analysis paralysis” caused by managing too much data should not be a deterrent to collecting safety-related information.

A true risk-reporting culture requires two things: empowering workers to be able to speak up without fear of retaliation, which is also addressed in the new e-reporting rule, and giving employees the tools necessary to report incidents quickly and accurately. If you’ve ever tried to tell a friend a story about something disappointing—or even exciting—that happened to you the other day, you know that some of the details get lost along the way, and it’s easy to embellish or confuse facts. And the longer you wait to tell the story, the less likely it is to be accurate.

Recent research from Donna Bridge, a then-postdoctoral fellow at the Northwestern University Feinberg School of Medicine and currently an assistant professor at the school, found that human memories “aren’t static” and that “if you remember something in the context of a new environment and time, or if you are even in a different mood, your memories might integrate the new information.”

See also: Sensors and the Next Wave of IoT  

And that’s not a good thing for accuracy, especially when it comes to tracking incidents and even near-misses in the workplace.

Using OSHA’s upcoming e-reporting rules as a talking point, insurers should help lead the push for more advanced safety analytics in the workplace. Not only will this mitigate insurance carriers’ exposures, but also it will keep people out of harm’s way and ensure that companies meet the new OSHA e-reporting requirements.

A New Safety Threat on Our Roads

We’ve been driving cars for 125 years. We have been talking on telephones for 100 years. We’ve only combined these two activities, to any great degree, in the last 10 to 15 years.

Motor vehicle crashes are the No. 1 cause of accidental death in the U.S. Crashes are the leading cause of all death, accidental or otherwise, for everyone between the ages of five and 35. Those between the ages of 15 and 20 are more likely to die in a car crash than the next three leading causes of death combined – homicide, suicide and cancer. According to the National Highway Traffic Safety Administration (NHTSA), the critical reason for 94% of crashes is driver error, as opposed to vehicle- or environment-related reasons. Recognition and decision errors, which include driver distraction, represent 74% of driver error.

Alarmingly, after decades of decline, total fatalities from vehicle crashes and fatalities per million miles driven have been increasing for the past two years. There is a new threat on our nation’s highways, and it’s distracted driving. Drivers have always been at risk of distraction, but today, because of the rapid adoption of mobile communications technology, drivers are now distracted in ways we never dreamed possible 20 years ago.

See also: Distracted Driving: a Job for Insurtech?  

An Important Issue for Employers and the Insurance Industry

Cell phone use while driving has become an important safety and liability issue for all employers. Those who expect employees to use cell phones while driving as part of their business must recognize that doing so exposes their employees to a preventable crash risk and employers to costly liability.

Consider a situation in which an employer knew a behavior in some area of its operations exposed employees to a much greater risk of injury. Would employers still expect, or even encourage, that behavior? That is precisely what happens when an employer permits or encourages employee cell phone use while driving. With the intense publicity surrounding cell phone distracted driving in recent years, it would be difficult for employers to argue that they’re not aware of the dangers.

Employers are responsible for ensuring employees adhere to applicable federal agency regulations and federal, state and municipal laws. However, what is often not understood is that these regulations and laws are a minimum standard and, in many cases, are not be enough to keep people safe.

Employers should establish policies about cell phone use and driving that exceed existing laws. Safety policies and systems in many companies are designed to reduce significant risks and protect employees. Companies whose leaders are committed to safety excellence know that their safety systems and policies often exceed OSHA requirements or applicable laws, because regulations and laws often prescribe minimum standards, not best-in-class safety. Designing safety policies that only comply with federal rules, regulations or state laws often leaves employees vulnerable to injury and companies exposed to liability and financial costs. Cell phone use while driving is, in this way, no different than many other occupational safety issues.

No Impact on Business Operations

Contrary to what one might think, companies that have implemented total bans on mobile device use while driving have overwhelmingly reported no negative impact on productivity, customer service or other business operations. In two studies conducted by the National Safety Council, 90% of companies with policies reported no impact on productivity. Of the 10% that reported a change, nine out of 10 claimed productivity actually increased. Only 1% thought productivity had decreased.

All Distractions Are Not the Same

Drivers who use their cell phones while driving expose themselves to a significant safety risk that affects both them and those with whom they share the road. Cell phone distraction involves all three types of driver distraction: visual, manual and cognitive.

Distracted driving crashes are the result of two factors; 1) the risk of the activity, and 2) the prevalence of that risk. Most people, including lawmakers and some researchers, only focus on risk and ignore risk exposure. In evaluating what causes crashes, both are equally important.

We typically have little concern for a risk to which we are seldom exposed, but we have great concern for a risk to which we are continuously exposed, as in the case of cell phone distracted driving. It is risk exposure that makes cell phone use while driving such a dangerous activity. NHTSA has stated (based on its annual NOPUS study) that more than 10% of all drivers are using their cell phones at any given time. No other distracting behavior or risk comes close to that level of exposure. It is risk exposure that makes cell phones the most dangerous distraction, by far, that drivers face on a continuing basis.

The Human Brain Does Not Truly Multi-Task

The field of cognitive neuroscience has studied human attention for more than 80 years. These scientists will tell you there is no such thing as true “multi-tasking.” When we are reading a book or magazine article and the phones rings, we naturally stop reading, answer the phone and have a conversation. Most of us would never consider continuing to read as we talk on the phone. That is because the human brain does not multi-task, it toggle tasks. It switches back and forth between two tasks, never engaged in both at precisely the same time. We know that if we try to read and talk on the phone, we are not doing either task well, so we rarely try to do both at the same time. Yet, most of us think it is perfectly fine to talk on the phone and drive a vehicle. If we make a mistake reading a book, we can re-read a paragraph. If we make a mistake driving a vehicle, it can damage our lives or someone else’s.

Hands-Free is Not the Answer

As traffic safety professionals pursue a culture change around cell phone use while driving, It will be much easier to convince drivers to switch to hands-free rather than to stop using phones altogether while driving. Unfortunately, there is no evidence that hands-free phone use reduces distraction or crashes. More than 30 research studies have found that hands-free devices offer no safety benefit, because they do not reduce the cognitive distraction of the phone conversation. All major U.S. traffic safety organizations, including the National Safety Council (NSC) and the National Transportation Safety Board (NTSB), have made public statements, after reviewing research, that hands-free is not safer than hand-held phone use.

See also: Don’t Be Distracted by Driverless Cars  

NSC and NTSB

In January 2009, based on input from many of its 10,000 plus business members, NSC called for a total ban on cell phone driving. In December 2011, the NTSB issued the recommendation that all states enact complete bans of all portable electronic devices for all drivers — including banning the use of hands-free devices. This follows its total ban recommendation for commercial drivers in October 2011. NTSB recommendations are based on their investigations of serious and fatal crashes that found driver or operator cell phone use was a factor in the crashes.

Conclusion

The rapid advancement of mobile communications technology has enabled drivers to engage in all kinds activities while driving a vehicle that have nothing to do with driving. As long as crashes are killing and seriously injuring so many people, and as long as driver error is the overwhelming leading cause of crashes, does it make sense to allow, and even encourage, the driver to engage in phone calls, Facebook updates, voice based texting and other activities that have nothing to do with the already dangerous task of driving?

The auto and consumer electronics industries have claimed that “eyes on the road and hands on the wheel” are the only critical requirements for distraction free driving. They seem to believe the mind is not required to safely operate a vehicle. This contradicts years of science and, most importantly, common sense. It is time that we focus first and exclusively on the task of driving, for our safety and for the safety of everyone with whom we share the road. It is also time for the Insurance Industry to take the lead on this issue by implementing total ban policies for their employees and encouraging their insureds to drive cell phone free.

Congress Reins in OSHA on Records

As part of efforts by Congress to overturn various regulations published during the waning days of the Obama administration, the House of Representatives on March 1 passed HJR 83 on a largely party-line vote. The resolution, unlike what we have come to expect in congressional work product, is a model of conciseness:

“That Congress disapproves the rule submitted by the Department of Labor relating to ‘Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness’ (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect.”

The rule, announced by the Occupational Safety and Health Administration (OSHA), created a continuing obligation to maintain accurate injury and illness records for five years (OSHA 300 Log). The rule also required the accurate filing of Form 301 incident reports throughout the five-year, retention-and-access period if employers do not prepare the report when first required to do so,

HJR83 is a technical way to say that the Dec. 19, 2016 rule will be nullified if the Senate concurs and President Trump signs the legislation. In case there was any doubt, on Feb. 28 the office of the president issued a statement saying, “If this bill were presented to the president in its current form, his advisers would recommend that he sign it into law.”

See also: What Trump Wants to Do on ACA  

When the Senate received HJR 83 on March 2, it immediately introduced SJR 27 to accomplish the same purpose and with identical language.

Critics of the regulation felt that it was a last-hour effort to undo the decision of a panel of the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC (dba Volks Constructors) v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, per OSHA’s interpretation, the five-year retention requirement for these injury and illness logs created five years of potential liability for inaccurate record keeping. In other words, there was a continuing duty to maintain the accuracy of the logs. In Volks, however, the court unanimously disagreed with the Department of Labor and decided that there was no such continuing duty. The court held that no citation may be issued after the expiration of six months following the occurrence of any violation, following the general limitation on citations contained in the U.S. Code under the Occupational Safety and Health Act.

OSHA did not challenge the Volks decision. Instead, OSHA pointed to the concurring opinion of Circuit Judge Merrick Garland, who agreed that OSHA’s interpretation was wrong, but because of a lack of regulatory authority and not necessarily a lack of statutory authority. That distinction was enough for the Department of Labor to adopt the challenged regulations, and Garland’s opinion was quoted extensively in the Federal Register by OSHA in support of its actions. Congress, it appears, will be the ultimate arbiter of that issue.

The creation of a continuing duty arguably makes it easier to prove that record keeping violations were willful. That increases the exposure to penalties. While OSHA’s comments in the Federal Register when the regulation was published downplayed the additional obligations of employers in complying with the law, employers and associations expressed concerns about how the “continuing violations” would be managed by employers and enforced by OSHA. These comments suggest that the compliance costs are real and material.

The National Federation of Independent Businesses (NFIB) says the regulation will cost the economy $1.9 billion over five years. OSHA disagreed with that assessment. (Federal Register, Vol. 81, No. 243, p. 91806).

See also: Captives: Congress Shoots, Misses  

It is important to remember that if Congress doesn’t act and the president does not sign the resolution, the regulation will be in effect.

The bigger picture of how to deal with a wide range of regulations from the Department of Labor, including OSHA, is a much larger topic. There are certainly controversial regulations that must be reviewed by the new nominee for Secretary of Labor, Alex Acosta, once he is confirmed. For the moment, however, this record-keeping rule is on the path of disapproval, much to the relief of employers across the country.