Download Adele Abrams - National Safety Council

Safety Management of
Unique Populations
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams PC
www.safety-law.com
Overview - OSHA



General Duty Clause (Section 5(a)(1) of the
OSH Act) requires employers to provide work
and a work environment free from recognized
hazards that are causing or are likely to cause
death or serious physical harm.
All workers must be equally protected : age,
race, gender, culture, disability status
This requires consideration of unique
characteristics that may pose safety/health
risks re: equipment, PPE, chemical exposures
“At Risk” Workers

Research has identified the following variables as
being related to a disproportionate share of injuries
and illnesses at the worksite on the part of employees:






Fatal injury rates were lower among younger workers ( age
25-34 had rate of 2.3 per 100K FTE) than older workers
(age 65+ had rate of 9.4 per 100K FTE)
The length of time on the job (new employees have higher
incidence rates).
The size of the firm (in general terms, medium-size firms
have higher incidence rates than smaller or larger firms).
The type of work performed (incidence and severity rates
vary significantly by SIC Code).
The use of hazardous substances (by SIC Code).
Worker status – higher injury rates among “contingent
workers” (temps, day laborers, “gig” economy)
“At Risk” Workers - Internal Data


Examine the incidence of accidents and injuries, both
within the company and within the industry.
If employees in certain occupational categories are
experiencing higher accident and injury rates than
other employees, training may be one way to reduce
that rate.


If certain job categories have high incidence rates for
unique populations, consider what heightened risk factors
may be present … and control for these hazards
Thorough accident investigation (and examination of
“near misses”) can identify not only specific
employees who could benefit from training but also
identify company-wide needs.
“Multi-Generational” Workforce:
Cultural Challenges
Traditionalist
Born: 1928-1945
Boomer
Born: 1946-1964
Generation X
Generation Y
Born: 1965-1980
Born: 1980-2000
Four generations (cultures) are being asked to coexist in the
early 21st century workplace
Source: Based in part on “Meeting the Challenges of
Tomorrow's Workplace,” CEO Magazine
Training Considerations



OSHA expects training to be provided in “language and
vocabulary” workers can comprehend – use of translators or
subtitles will make for less effective instruction
If deficiency exists in the employer's training program, CSHO
must document evidence of any barriers or impediments to
understanding, as well as any other facts that would
demonstrate that employees were unable to apply training info
to their specific workplace conditions.
When training young workers, experienced workers may not
see evident hazards because “short cuts” have become
entrenched
 Older workers are likely to do the “task training” or OTJ
training for newer workers – make sure SOP/JSA are
actually being followed by the trainer (or update as needed)
 Millenials are accustomed to classroom situations that
encourage interaction between students, and want training
materials that are varied, tech-oriented, interactive.
US Census: Patterns of Growth by Age
Percent Growth in U.S. Population by Age: 2000-2010
3. Rapid growth in the over-55 workforce
80%
60%
48%
40%
18%
20%
5%
0%
-20%
5%
2. Few younger
workers entering
16-24
15%
25-34
-9%
35-44
45-54
55-64
65+
Age of Workers
1. Declining number of mid-career workers
Source: U.S. Census Bureau
. . . Continuing Into the Future
Percent Growth in U.S. Workforce by Age: 2000-2020
80%
73%
54%
60%
40%
20%
7%
8%
7%
3%
0%
-10%
-20%
under 14
15-24
25-34
35-44
45-55
55-64
65+
Age of Workers
Source: U.S. Census Bureau
Aging & Occupational Safety:
A Balance of Factors

Possible Limitations




Compensating Factors?






Mental Capacity
Chronic Conditions
Physical Capacity
Attitude
Judgment
Flexibility
Interest in learning new things
Medical costs rise with age: Estimated 25% increase from age 40 to
50 .. 35% increase from age 50 to 60
Workers 65+ accounted for 13.4% of all 2015 workplace fatalities
Aging Worker Safety Issues

Potential OSH problems for
elder workers include:





Loss of vital functions
(vision, hearing)
Loss of strength, response
speed due to lower muscle
mass
Prone to MSDs, back injuries
etc.
Greater use of prescription
medicines due to underlying
medical conditions
Injuries to older workers may
be more severe and take
longer for recovery
Physical Capacity Challenges:
Can Older Workers Keep Up?


Physiology

Maximal strength at 20-30 years

O2 uptake reduced to 70% (max) by 65 years

Older adults work closer to capacity
Match Ability to Job Requirements

Change in industry from manufacturing to
services

Change in job duties from physical to mental

NOTE: ADA may apply and require “reasonable
accommodation” of workers with physical, or mental,
limitations covered by statute

Balance with “direct threat to safety” affirmative
defense
Aging Worker Recommendations



Elder workers should discuss medical conditions and their
ability to work with personal physician or IME during postoffer medical examinations – initiate interactive dialogue with
employer if “reasonable accommodation” needed for safety or
other purposes.
Underlying medical conditions may put elder workers at
increased risk and susceptibility to injury, and this cannot be
ignored: early detection and treatment of sensory impairments
(hearing loss or visual impairment) and conditions such as
early onset Alzheimer’s, can reduce the risk for injury.
Wellness plays a critical part – take steps to lower workers’
risk of disease … and make sure wellness programs are not
structured as to make elder workers ineligible to participate
and obtain benefits (monetary and otherwise).

Such programs can also increase elder workers’ knowledge about
chronic diseases such as heart disease, cancer, diabetes, osteoporosis,
and arthritis and assist illness prevention.
Aging Worker Recommendations






Perform frequent monitoring to ensure the older worker can
handle job tasks as well as when they started their job.
Elder workers may no longer be able to safely wear respirators
or certain other PPE – they may also take medications that can
interfere with equipment operation or impair concentration.
Occupational exposure limits should be used with the
understanding that they may not provide adequate protection.
ADA prohibits discrimination against qualified people with a
disability who could perform the job, even if they need a
"reasonable accommodation.“
ADEA prohibits discrimination against workers/applicants age
40 and above, on the basis of age.
Incorporate wellness activities in the overall worksite
employee health and safety program.
Youth Worker Issues


Youth workers 14-24 represent over 12% of nonfatal injury cases.
Youth workers are at risk of workplace injury because:
 inexperience at work
 physical, cognitive, and emotional developmental characteristics
 hesitancy to ask questions
 inadequate training – failure to recognize workplace dangers
 “10 feet tall and bullet-proof” (peer pressure on risk-taking)


About 30 percent of young worker fatalities occurred at
family-owned businesses.
Federal and state legal requirements preclude younger workers
from certain occupations or job positions, or operating certain
equipment.
Restrictions on Youth Workers

Additional orders promulgated pursuant to the FLSA prohibit operation of
other equipment used in many manufacturing facilities by certain age
groups, because of the unique hazards they pose to workers younger than
18 years of age.

Equipment that cannot be operated by those under age 18 includes:






Order 2, driving a motor vehicle and being an outside helper on a motor
vehicle;
Order 5, operation of power-driven wood-working machines;
Order 8, operation of power-driven metal forming, punching, and
shearig machines;
Order 12, operation of paper-products machines; and
Order 14, operation of circular saws, band saws, and guillotine shears.
Youths who are 14 or 15 are completely barred from working in
manufacturing facilities
Youth Worker Incidence Rates
Recommendations – Youth Workers






Adult workers must lead by example and not suggest to
youngsters that it is permissible to take shortcuts, ignore PPE
requirements, or otherwise deviate from MSHA/OSHA
requirements.
Recognize the hazards and reduce the potential for
injury/illness through risk assessment & hazard mitigation.
Supervise youth workers appropriately
Make sure that supervisors, and adult co-workers, are aware of
which tasks young workers are prohibited from performing.
Be aware that young workers often are afraid to ask questions
out of fear that they will appear “stupid.”
Evaluate whether these workers actually have comprehended
the information provided in training
Recommendations – Youth Workers






Make sure equipment used by workers is safe and legal, and
color-code equipment that is “off-limits” to workers under the
age of 18. This will make it easier to spot potential violations
of state child labor laws and/or the FLSA.
Train workers in hazard recognition and safe work practices.
Have young workers demonstrate that they can perform
assigned tasks safely and correctly, and obtain feedback about
the training.
Develop an injury and illness prevention program that involves
supervisors and experienced workers
Include a process for identifying and solving safety and health
problems.
Use the available MSHA/OSHA consultation programs to help
improve safety and health management programs.
Hispanic Worker Issues




Hispanics or Latinos are persons of Cuban, Mexican, Puerto Rican,
South or Central-American, or other Spanish culture or origin,
regardless of race.
Fatal injuries involving Hispanic/Latino workers rose 12% in 2015,
accounting for nearly 19% of all workplace fatalities.
Hispanic workers were injured in 14% of non-fatal cases in 2015
(African-Americans were injured in 8% of total cases by
comparison)
Potential underreporting due to fear of retaliation, especially if
worker’s legal status is at issue.
 State law (HB 27) passed Ohio House (5/17) barring
undocumented workers from receiving WC benefits
 It immunizes employers for injuries suffered by undocumented
immigrants unless worker proves the employer knew their status.
Training for ESL Workers






Employer must instruct employees using both a language and
vocabulary that the employees can understand.
If the employee's vocabulary is limited, the training must
account for that limitation.
OSHA HazCom Training - CPL 2-2.38(D)(1998) states: "[i]f
the employees receive job instructions in a language other than
English, then training and information to be conveyed under
the [hazard communication standard] will also need to be
conducted in a foreign language"
Construction training policy: "instruction that employers must
provide under §1926.21 must be tailored to the employees'
language and education...."
If employees are not literate, telling them to read training
materials will not satisfy the employer's training obligation.
OSHA has webtool to help employers with a Spanish-speaking
workforce identify outreach resources:
https://www.osha.gov/OshDoc/data_Hispanic/hispanic_outrea
ch.pdf
ESL Solutions?

Employers and trade associations can build upon these projects
to develop culturally competent programs that engage
Hispanic workers in identifying and address their occupational
health and safety concerns.
 Train in native language to ensure comprehension – select
translators carefully
 Ensure SDSs, labels and warning signs are understandable
(bi-lingual or use pictures)
 Translate company safety materials into workforces’
languages
 Pair non-English speaking workers with seasoned bilingual
worker or supervisor, so they can observe safe work
practices and receive appropriate mentoring
 Assure workers that it IS macho to wear PPE
 No second class workers when it comes to safety & health!
Gender Considerations




About 60% of women are in workforce (twice rate of 1950s):
they are more likely to do temporary, contingent or part-time
work and immigrant women are particularly high-risk group.
In 2015, women represented 38% of nonfatal injury/illnesses
cases … and 7% of fatal cases
Lost-time differences often ignored in research agendas
 average time lost for women per occurrence is 8.5 weeks v.
6.5 weeks for men
 over 14% of women’s injuries results in absences longer
than 25 weeks)
Domestic sector jobs often lack worker’s compensation
coverage, pensions, or medical coverage … and employers
may not provide any safety-related training or appropriate PPE
(or HazCom info for chemicals used in cleaning etc.)
Laws Affecting Gender & OSH


United States’ safety laws do not distinguish between men
and women, Civil Rights Act protects against pregnancy
and gender discrimination but EEOC claims are hard to
sustain and expensive to litigate.
UK legislation on OSH is “gender neutral” but standards
are based on norms set by men for men and ignore
concentration of women in “low risk” occupations that
involve exposures duplicated in their domestic labor “after
hours”
 OELs in all industrialized countries set maximum toxic
chemical exposures based on limits for male bodies,
based on 8-hr., 5-day weeks. Women often work longer
hours with poor fitting protective equipment.
Other Countries’ Laws on
Gender & OSH




EU Council Directive 89/391 states: “Particularly sensitive
risk groups must be protected against the dangers which
specifically affect them”
EU Council Directives 89/654 and 92/85 encourage
improvements in OSH for pregnant workers and those who
breastfeed, including restrictions on night work, provision of
rest areas, and protection against tobacco smoke
Finnish OSH Act 738/2002 requires employers to account for
reproductive health risks and to consider workers’ age, gender
and other personal capacities
Some countries bar women from night work, underground
work and other activities considered dangerous to women and
their reproductive health
Women’s OSH Issues









Stress (88%)
Manual Handling (63%)
Repetitive Strain Injuries (53%)
Workplace Violence (36%) (OSHA rulemaking dead?)
Reproductive health/pregnancy/safe breastfeeding
Work-related infectious diseases (OSHA rulemaking dead?)
Lack of toilet breaks, toilet facilities, wash stations and tampon
machines (bladder infections and toxic shock syndrome)
Lack of mentoring/adequate training
OTJ sexual harassment
Women & Health Care


Over 13 million women work in health care and social
assistance – 91% of nurses and nursing aides are female
Main safety & health risks:






Infectious disease transmission & needlesticks
Hazardous chemicals (new awareness about worker exposure to chemo
drugs and other hazardous medicines and treatments)
Shift changes and circadian disruptions
Workplace violence
Physical tasks (patient lifting) and other activities leading to MSDs
Studies suggest psychological job stress (e.g., due to 12-hr-plus
workshifts) affects levels of immune system markers in female nurses
Women & Construction


Nearly 1 million women work in construction
Major health & safety concerns:









Exposure to chemical and physical agents
Noise & hearing loss
Injuries from lifting, bending, twisting
Falling
Being cut
Lack of proper education & training
Inadequate protective clothing, tools
Job stress & sexual harassment/hostile work environment
Lack of access to sanitary facilities
Reproductive Health Issues




Substances affecting reproductive health of women (or men), or
ability to have healthy children are reproductive hazards:
 Radiation
 Certain chemicals and drugs
 Biological agents
 Tobacco and alcohol
Some countries still require women to be sterilized in order to work
around toxic chemicals, or fire women when they become pregnant
 United States: This practice barred by 1991 Supreme Court
decision in Johnson Controls
Chemical OELs may be inappropriate for women workers, who
absorb more toxins due to gender differences in metabolism, skin
thickness, and rates of excretion of fat-soluble chemicals and may
have off-job supplemental exposures
Other hazards to pregnant women result from heavy lifting, stress,
violence, microelectronics, pesticides, and nanotechnology
NIOSH Gender Research Agenda

National Institute for Occupational Safety & Health (NIOSH) has
projects, alerts and research on the following subjects affecting
women’s OSH:
 Breast and cervical cancer caused by chemical exposures
 Preventing homicide in the workplace
 Preventing needlestick injuries in health care
 Providing safety and health protective for a diverse construction
workforce
 Stress at work and link to cardiovascular disease
 Female reproductive health hazards (VDTs, ionizing radiation, fuel
exposure)
 Ergonomic hazards and injuries
 Latex allergy prevention
 Chemical hazards (e.g., perchloroethylene)
 Physiological stress of respirator use on pregnant women
Questions?
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams PC
[email protected]
301-595-3520