Steel Maker Fined $295K in OSHA Safety Cases

Sadly, this comes too late for the dead worker, but hopefully can fend off future safety lapses.

Three federal workplace safety and health investigations that followed the April 2023 death of a worker at a Tulsa manufacturing facility found the company exposed employees to struck-by hazards and identified 36 violations, including 25 serious safety violations of U.S. Department of Labor regulations.

Investigators with the department’s Occupational Safety and Health Administration opened the initial investigation in response to the fatality at Accurate Manufacturing Inc. The agency then opened comprehensive safety and health investigations under an existing Regional Emphasis Program focused on safety and health hazards commonly faced by workers in the fabricated metal products industry.

In its initial inspection, OSHA found an employee suffered fatal injuries during pressure testing of a heat exchanger. With pressure at 2,600 psi, one of the exchangers’ plugs blew off and struck the employee. OSHA determined the company violated the general duty clause for not keeping its employees safe. Further inspections at the facility identified 25 serious safety violations related to the following hazards:

• Failing to keep exit routes free from obstruction.
• Allowing a barrel of flammable chemical to not be grounded and bonded.
• Failing to have an energy-control program or provide related training.
• Allowing the use of powered industrial trucks, slings and lifting devices that were not in safe operating condition.
• Failing to install required machine guards.
• Not ensuring electrical equipment was maintained properly and in safe operating condition.
• Failing to provide flame-proof shields or screens and protective eye wear to welders and their assistants.

In addition, OSHA’s health investigation at Accurate Manufacturing Inc. found 10 violations. The agency cited the company for its failures to do the following:

• Employ a continuing and effective hearing conservation program and maintain accurate records of employees’ exposure measurements.
• Establish and maintain an audiometric testing program and valid baseline audiogram.
• Make sure the facility’s paint spray booth met all OSHA requirements.
• Keep the space around the spray booth clear and install sprinklers.
• Provide comprehensive respiratory protection and written hazard communication programs.

The agency has proposed a combined total of $275,890 in penalties for the three inspections.

“Our investigations identified three dozen violations, most of them serious, and found hazardous conditions affecting nearly every aspect of Accurate Manufacturing’s operations,” explained OSHA Area Director Steven Kirby in Oklahoma City. “We have major concerns about the company’s lack of commitment to protecting its employees and a disregard of hazards that has contributed to an employee losing their life.”

Founded in 2000, Tulsa-based Accurate Manufacturing Inc. and its sister company Professional Fabricators Inc., established in 1997, manufacture and build steel products for various industries, including oil and gas. The companies employ about 40 workers who specialize in steel fabrication and manufacturing.

Accurate Manufacturing Inc. has 15 business days from receipt of citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Learn more about the Regional Emphasis Program for Safety & Health Hazards in the Manufacture of Fabricated Metal Products.

OSHA Fines Employer $399K in Toxic Gas Case

Workplace safety violations come in all shapes and sizes, unfortunately. Here’s an instance where an employer’s tank cleaning operations proved hazardous, repeatedly.

Two employees of a national tank cleaning company suffered injuries when exposed to hydrogen sulfide – a flammable, highly toxic colorless gas – that was present during the cleaning process ­­of a tanker truck on April 25, 2023, in Beaumont. Two municipal firefighters responding to the scene also suffered injuries from the gas.

Federal investigators determined the employer – Trimac Transportation Inc., which operates as National Tank Services – did not provide adequate respiratory protection, resulting in two employees being transported to the hospital, one of them being hospitalized due to the exposure. The first responders were treated on the scene.

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration found National Tank Services did not evaluate the worksite for possible respiratory hazards like the one that sickened the workers, and did not monitor employees for exposure to other substances. The company also failed to provide workers with appropriate respirators, manage a required respiratory protection program to provide workers with medical evaluations prior to respirator use and conduct respiratory fit testing.

OSHA proposed penalties of $399,349 to the company after citing nine health violations, including two willful, three repeat and four serious. 

“Exposure to toxic gases is a known health risk when cleaning tanks and trailers. National Tank Services must cease their lax approach to health and safety standards and immediately implement respiratory protection requirements, testing and other safety measures to prevent worker’s exposure to these deadly gases,” said OSHA Area Director Mark Briggs in Houston. “The company’s repeated violations of federal and industry-recognized safety and health standards resulted in the hospitalization of one employee and injuries to another worker and first responders on the scene. This will not be tolerated.”

Investigators also found National Tank Services again failed to provide protective clothing, eye, face and hand protection, did not label containers and failed to provide injury and illness logs to OSHA within four business hours, violations previously cited in the past five years at their facilities in Georgia, Louisiana and Texas.

Workers were also exposed to fall hazards because the company failed to install mid rails on the stairway and on the catwalk platform guardrail system.

A subsidiary of Trimac Transportation of Canada, National Tank Services operates 30 maintenance and tank cleaning locations across North America.

The company has 15 business days from receipt of citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Learn more about OSHA and how to protect workers from exposure to hydrogen sulfide.

OSHA Tips on Warehouse, Storage Safety

When government works best, it helps educate those who must comply with its rules on what those rules require. Hats off to the Occupational Safety and Health Administration for this primer on safety in the warehouse and storage industry.

The warehousing and storage industry includes establishments operating facilities for general merchandise, refrigerated goods, and other products. These establishments may also provide logistical services relating to goods distribution. Potential hazards in this rapidly growing, fast-paced industry include those associated with powered industrial trucks (forklifts), ergonomics, material handling, hazardous chemicals, slip/trip/falls, and robotics. The most common injuries are musculoskeletal disorders (mainly from overexertion in lifting and lowering) and being struck by powered industrial trucks and other materials handling equipment.

The paper lists OSHA and consensus standards applicable to warehousing operations–and provides information on recognizing and controlling warehousing hazards.

Go to osha.gov for more information.

EEOC Alleges Employer Forced EAP on Victim

Is it a stretch to accuse an employer of violating the ADA by compelling a harassment victim to participate in its employee assistance program? A court may have to decide that question.

Weis Markets, Inc., a chain of grocery stores throughout the Mid-Atlantic and headquartered in Sunbury, Pennsylvania, subjected an employee to sexual harassment and discharged her when she refused to comply with an unlawful directive to participate in the company’s employee assistance program, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit Thursday.

According to the EEOC’s lawsuit, a supervisor at Weis Markets’ Mifflintown, Pennsylvania store subjected a female employee to unwelcome and offensive sexual harassment. The supervisor made frequent sexual comments in the workplace, often winked at the employee, made statements indicating his propensity to commit violent acts, and, on one occasion, kissed her face without consent, the EEOC alleged. The suit charged that Weis Markets failed to take reasonable corrective action against the supervisor after the employee reported the sexual harassment and the supervisor admitted some of his conduct.

After the employee’s sexual harassment complaint, the company told her that coworkers had complained about her and as a result of those complaints, she would be required to participate in its employee assistance program (EAP), the EEOC alleged. The EEOC’s lawsuit charged that the mandatory EAP referral would have required her to undergo a medical examination and disability-related inquiries. The referral would also require her to release medical information to the company, and a company official confirmed to her that the referral was to determine whether she would be placed on disability leave. When the female employee refused to comply with the mandatory EAP referral, Weis Markets suspended her without pay and ultimately discharged her, the EEOC charged.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace sexual harassment. Such alleged conduct also violates the Americans with Disabilities Act (ADA), which prohibits requiring employees to undergo medical examinations or answer questions that are likely to reveal whether they have disabilities unless the employer can show the examinations or inquiries are job-related and consistent with business necessity. The ADA also prohibits retaliating against employees for opposing such practices and interfering with employees’ exercise and enjoyment of ADA rights, including the right to be free from illegal medical examinations and disability-related inquiries.

The EEOC filed suit in U.S. District Court for the Middle District of Pennsylvania (U.S. EEOC v. Weis Markets, Inc., Case No. 1:23-cv-01767-YK, after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

“Title VII requires employers to make diligent efforts to prevent and correct workplace sexual harassment,” said Philadelphia District Office Regional Attorney Debra Lawrence. “The EEOC will continue to hold employers accountable for their failure to protect workers from such abuses.”

Philadelphia District Director Jamie Williamson added, “Employees have a right under the ADA not to be forced by their employers to participate in medical exams and inquiries that are not job-related and consistent with business necessity. The EEOC will not permit employers to interfere with that important ADA right or to retaliate against employees who exercise it.”

The lawsuit was filed by the EEOC’s Pittsburgh Area Office, a component of the Philadelphia District Office, which has jurisdiction over Pennsylvania, West Virginia, Maryland, Delaware, and parts of New Jersey and Ohio. Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases in Washington, D.C., and parts of Virginia.

For more information on sexual harassment, please visit https://www.eeoc.gov/sexual-harassment. For more information about medical examinations and disability-related inquiries of employees, please visit https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees. For more information on retaliation, please visit https://www.eeoc.gov/retaliation.

Wisconsin, NY Roofers Latest to Be Cited by OSHA for Inadequate Fall Protections for Workers

Working on a roof is among the most dangerous of occupations. Here are two more instances of the government taking action against contractors that do not provide adequate protection against falling off a roof.

The U.S. Department of Labor’s Occupational Safety and Health Administration opened an inspection with general contractor Brookens Constructions LLC on May 12, 2023, after OSHA inspectors observed a worker shingling a residential roof without fall protection on Ridgeview Drive in Appleton, Wisconsin. The worker was employed by a subcontractor, Eaglevision LLC of Elgin, Illinois.

Inspectors also found the general contractor failed to perform site inspections to make sure its subcontractors followed safety procedures, did not provide eye protection exposing workers to flying debris while using pneumatic nail guns, used a damaged ladder and did not train workers about fall hazards. The agency proposed penalties of $132,593 for two willful, two serious violations and one other-than-serious violation.

“Our inspector found that Brookens Construction’s project manager failed to require subcontractors working on their job sites to comply with safety and health requirements despite spending several hours at each site documenting satisfactory replacement of a residential home roofs,” explained OSHA Area Director Robert Bonack in Appleton, Wisconsin. “Fall hazards are the leading cause of injuries and death in the construction industry. Employers can protect workers by following federal and industry recognized safety standards to protect workers on the job.”

OSHA cited Brookens Construction in 2019 and 2022 for similar hazards in three separate inspections. Brookens provides roofing serves in the greater Madison, Milwaukee and Green Bay areas.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Meanwhile, the U.S. Department of Labor has obtained a consent injunction ordering a Rockland County roofing contractor and its principal to provide employees with fall protection equipment and make sure it’s used at all company worksites, as required by federal law. The order finds that, by allowing employees to do roofing work without fall protection, the company is exposing them to imminent danger of death or serious harm.

Since 2019, the department’s Occupational Safety and Health Administration has cited ALJ Home Improvement Inc. multiple times for fall-related violations, including after company employees suffered fatal falls in 2019 and 2022. In May 2023, ALJ and its owner Jose Lema signed a settlement agreement with OSHA to resolve and affirm willful citations the agency issued in 2021, which includes enhanced provisions for correcting and preventing fall hazards.

Entered in the U.S. District Court for the Southern District of New York, the injunction requires ALJ and Lema to comply with the enhanced abatement provisions of the settlement agreement, including notifying OSHA of future company jobsites, providing all supervisors with OSHA 30-hour safety training and all employees with OSHA 10-hour safety training, and retaining a qualified safety consultant to develop safety, health and disciplinary programs and conduct worksite inspections. If ALJ or Lema fail to comply with the agreement, the department may file a contempt motion in federal court.

“Falls remain the number one cause of death in construction work, accounting for 351 out of 1,008 construction fatalities in 2020. Reducing that deadly statistic is made more difficult by stubborn employers who knowingly and repeatedly fail to comply with common sense and legally required safeguards,” said OSHA Regional Administrator Richard Mendelson in New York.

Read the consent order and injunction.

“These settlement terms provide extra assurance of compliance, enforceable via contempt in district court, given this employer’s history, and underscore the Department of Labor’s commitment to pursuing effective and appropriate legal actions to help ensure that employers correct violations and take substantive steps to prevent them from recurring,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.

In a separate legal action, the U.S. Attorney for the Southern District of New York filed criminal charges against owner Jose Lema in July 2023 arising from the 2022 worker fatality.

OSHA’s area office in Tarrytown conducted the original inspections. Senior Trial Attorney David J. Rutenberg of the regional solicitor’s office in New York negotiated the settlement and consent injunction.

Learn more about OSHA, fall protection in construction and protecting roofing workers.

Maritime Job Safety Committee to Meet Nov. 14

Workplace safety protections extend offshore as well as on dry land.

The Department of Labor’s Occupational Safety and Health Administration announced it will hold an in-person and online meeting of the Maritime Advisory Committee on Occupational Safety and Health on Tuesday, Nov. 14 from 9 a.m. to 5 p.m. EST.

Committee members will meet in person and the event will be open to the public either in person or online. The full committee will meet from 9 a.m. to 12 p.m. EST, and the Shipyard and Longshoring workgroups will meet from 1 to 5 p.m. EST.

The meeting will include reports from the Shipyard and Longshoring workgroups, and a presentation on the agency’s social media and outreach platforms and a U.S. Navy presentation on maritime fall protection. Updates from OSHA’s Directorate of Standards and Guidance, the Office of Maritime and Agriculture, and from agency leaders on the OSHA heat standard rulemaking initiative will also be provided.

Register to attend the meeting in person or online. Once registered, online attendees will receive a link for remote meeting access and in-person attendees will receive directions for participation. In-person attendance by the public is limited to 25 people.

Submit comments and requests to speak to the Federal eRulemaking Portal, Docket Number OSHA-2022-0011-0043, by Oct. 31. Be sure to include the docket number on all submissions. Read the Federal Register notice for submission details.

MACOSH advises the Secretary of Labor in formulating maritime industry standards and matters pertaining to the administration of the Occupational Safety and Health Act related to the maritime industry.

OSHA Levies $270K Fine on Car Battery Maker

Revival of American manufacturing, good. Preventable injuries to workers in those manufacturing jobs, not good.

U.S. Department of Labor investigators examining the cause of a March 2023 explosion and fire at a Warren auto battery manufacturing plant and investigating other safety complaints identified 19 safety and health violations after opening four separate inspections in less than a two-week period.

Inspections by the department’s Occupational Safety and Health Administration at Ultium Cells LLC led the agency to cite the company for 17 serious and two other-than-serious safety and health violations. OSHA inspectors found the company exposed workers to machine and chemical hazards by failing to use and train workers on safety and emergency response procedures.

The agency also learned Ultium Cells did not comply with federally required safety standards for the use of personal protective equipment, including respirators. The inspections took place between April 24 and May 5, 2023, at the plant, a joint venture between General Motors and LG Energy Solution to mass produce battery cells to help expand production of electric vehicles in North America.

OSHA has proposed $270,091 in penalties and issued the company a hazard alert letter asking them to voluntarily reduce accumulations of metal dust and protect employees from unsafe metal dust exposure.

“Ultium Cells’ technology and advanced manufacturing facilities are part of a new and emerging field but workplace safety standards — such as machine guarding, personal protective equipment and emergency response training — have been the law for decades,” said OSHA Area Director Howard Eberts in Cleveland. “The company’s focus on the future must include an emphasis on workplace safety to ensure the well-being of its employees.”

Specifically, OSHA inspectors found the company failed to do the following:

• Periodically test energy control procedures for various equipment.
• Install required machine guarding.
• Train workers in hazardous energy control procedures.
• Provide safe access and egress for packing employees, who were exposed to trip and fall hazards.
• Train workers in emergency response operations, including the release of hazardous N-Methylpyrrolidone.
• Coordinate emergency responses with an incident response system.
• Provide respiratory protection from exposure to hazardous chemicals that can cause numbness, dizziness and nausea.
• Train workers on the physical and health risks of hazardous chemicals used in the workplace.
• Provide safety data sheets for hazardous chemicals.
• Store chemicals in labeled containers.
• Select appropriate personal protective equipment and provide training on the use of PPE for potential exposure to chemical hazards, such as electrolyte and dried coating material.
• Provide eye wash stations, emergency showers and hand protection.
• Inform employees of their right to report workplace injuries and illnesses.
• Allow an employee to freely report an injury.

Additionally, OSHA currently has one open inspection at the Warren facility following a June 27, 2023, fire and three inquiries, including a report that the company exposed workers to airborne chemicals in the cathode mixing area after a pressure gauge failed on Aug. 20, 2023, resulted in battery slurry leaking onto the plant floor.

Since the Warren facility began battery cell production in August 2022, OSHA has cited the plant 11 times. The company also has facilities under construction in Michigan and Tennessee.

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Learn more about OSHA, lockout/tagout procedures, hazard communication procedures, and the use of respiratory protection.

OSHA Extends Comment Period on Proposed Rule on Walkarounds During Safety Inspections

When an agency extends a comment period for a proposed regulation, it can mean many things. Maybe the agency has been bombarded with comments and needs more time to consider them. Or maybe there has been a dearth of comments and the agency wants to gin up interest.

I can’t read the intention of the Occupational Safety and Health Administration on its proposed rule allowing nonemployees to be present during workplace safety inspections.

What I do know is that OSHA is extending the comment period for its proposed rule on worker walkaround representation until November 13. An official announcement will be published in an upcoming issue of the Federal Register.

P.S. This post made it onto the weekly list of must-read blogs in the October 27 roundup of the Ohio Employer Law Blog published by attorney Jon Hyman.

Against the Grain: OSHA Fines ADM Over Safety Fault That Resulted in Explosion, Injuries to Three

Maybe it takes a six-figure fine to get the employer to comply with federal safety standards for grain operations.

A lack of preventative maintenance on the explosion suppression system of a bucket elevator was a major factor in an April 21, 2023, explosion at Archer-Daniels-Midland Company’s West Plant that resulted in the hospitalization of three employees with burns and other injuries and extensive damage to the grain elevator, federal investigators found.

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration responding to the combustible corn germ dust explosion determined that the explosion suppression system on the indoor bucket elevator leg was non-functional and in a state of disrepair. Investigators found the Decatur grain processing facility had not conducted inspections and testing of the explosion suppression systems since late 2016.

OSHA cited ADM for two willful, one serious and one other-than-serious health and safety violations and proposed $324,796 in penalties related to this explosion at the West Plant.

In April of 2019, OSHA cited ADM for not inspecting and testing critical safety systems after a Nov. 3, 2018, explosion at its East Campus caused extensive damage. As part of a formal settlement, the company agreed to conduct and document preventative maintenance on safety control equipment and to follow inspection procedures consistent with the manufacturer’s recommendations.

On Jan. 4, 2019, an explosion and deflagration propagation event caused equipment and structural damage in the East Wet Milling Corn Plant and outdoor truck unloading bucket elevator legs. A detailed Hazard Alert Letter was issued to the company outlining concerns with the performance and documentation of equipment maintenance of explosion suppression and other systems.

Employers are required to take necessary steps to eliminate grain explosion hazards by using proper dust collection systems and filters, good housekeeping, eliminating potential ignition sources and conducting testing and maintenance of safety systems designed to prevent these tragic incidents.

OSHA currently has an open inspection at ADM’s East Plant after another explosion and fire injured eight workers on Sept. 10, 2023.

Additionally, OSHA issued citations to the company on Sept. 29, 2023, following its investigation of the April 11, 2023, death of a locomotive cab operator in a collision at ADM’s East Soy Plant. The agency cited a violation of the general duty clause after determining ADM had not ensured that crews positioned rail cars with sufficient clearance to prevent a collision. OSHA proposed $15,625 in penalties.

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Learn more about OSHA, combustible dust explosions and safe agricultural operations.

$1M Settlement Concludes ADA, GINA Case Against Dollar General Brought by the EEOC

Is the retailer really that ignorant of the law concerning demanding medical information from job applicants?

Apparently so according to the federal government.

Variety store retailer Dolgencorp, LLC, doing business as Dollar General, has agreed to pay $1 million and provide other relief to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) alleging that its hiring process violated the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA), the federal agency announced Thursday.

According to the lawsuit, after making job offers to work at its Bessemer, Alabama Distribution Center, Dollar General required applicants to pass a pre-employment medical exam during which they were required to divulge past and present medical conditions of family members such as cancer, diabetes, and heart disease. The EEOC also alleged that Dollar General used qualification criteria that screened out qualified individuals with disabilities. For example, Dollar General rescinded job offers to applicants whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicants from safely performing the job.

The EEOC sued on behalf of a class of 498 applicants who were required to divulge family medical history during the hiring process and on behalf of another class of qualified applicants whose job offers were rescinded based on their impairments. Dollar General discontinued its practice of requiring pre-employment medical exams for these warehouse jobs after the lawsuit was filed.

Under the 27-month consent decree settling the suit, in addition to monetary relief, Dollar General must review and revise its ADA and GINA policies and distribute them to all individuals involved in the hiring process should they resume requiring medical exams. In addition, Dollar General must require their medical examiners not to request family medical history; must consider the medical opinion of an applicant’s personal physician; and must inform applicants how to request a reasonable accommodation if needed. The decree also requires Dollar General to provide annual training to all individuals involved in the hiring process on the ADA and GINA and to post a notice to employees on their rights under these statutes and how to file a charge of discrimination with the EEOC.

“Requiring individuals during the hiring process to answer invasive questions about medical conditions of their grandparents, parents or children violates GINA,” said EEOC Birmingham District Director Bradley Anderson. “An employer is prohibited from soliciting this information, regardless of whether the information is used to deny employment.”

Regional Attorney for the EEOC’s Birmingham District Marsha Rucker said, “The ADA protects job applicants from being denied employment because of a disability as long as they can perform the job with or without an accommodation. Employers cannot deny employment solely based on stereotypes about the abilities of individuals with certain impairments.”

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination. For more information on GINA, please visit    https://www.eeoc.gov/gina-genetic-information-nondiscrimination.

The EEOC’s Birmingham District consists of Alabama, Mississippi (except 17 northern counties) and the Florida Panhandle.