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Procedures for Conflict of Interests InterpretationsDoc ID: 06-008
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VOSH PROGRAM DIRECTIVE: 06-008 (e-version) ISSUED: April 4, 1988
SUBJECT: Procedures for Requesting Interpretation of the Conflict of Interests Act
A. Purpose.
This directive transmits to field personnel a procedure for requesting interpretations of the Conflict of Interests Act.
B. Scope.
This directive applies VOSH-wide.
C. Action.
The Assistant Commissioner and VOSH Enforcement Personnel shall assure that VOSH employees comply with the New Comprehensive Conflict of Interests Act, Section 2.1-639 et. seq. of the Code of Virginia.
D. Background.
Because of employee questions concerning outside activities such as consulting, training, public speaking, etc., and the Conflict of Interests Act, a procedure for requesting interpretations of the Act was created.
E. Enforcement Guidelines
Summary of Procedure
That VOSH employees having a question concerning the Conflict of Interests Act and their conduct under this law should seek an opinion from the Attorney General. A letter should be addressed to the Attorney General’s Office describing the problem.
All opinions will be issued in writing. We have been informed it will take approximately 2-3 weeks for the Attorney General’s Office to respond to an employee’s letter.
Requests for opinions should be sent to
Office of the Attorney General 900 East Main Street Richmond, VA 23219
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DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner for VOSH VOSH Technical Services Director Directors and Supervisors Compliance Safety and Health Staff Voluntary Compliance and Training Staff OSHA Regional Administrator, Region III
First Aid Accessibility on Construction SitesDoc ID: 06-013
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VOSH PROGRAM DIRECTIVE: 06-013 (e-version) ISSUED: May 18, 1988
SUBJECT: Standard Interpretation of 1926.5(c); First Aid Training on Construction Sites
A. Purpose.
This directive transmits to field personnel an interpretation received from Federal OSHA concerning the meaning of the words “reasonably accessible in terms of time and distance to the worksite.” contained in 1926.50(c).
B. Scope.
This directive applies VOSH-wide.
C. Action.
The Assistant Commissioner and VOSH enforcement personnel shall assure that employers comply with the requirements of 1926.50(c) and the Federal OSHA interpretation, which was received by VOSH on April 28, 1988.
D. Background.
See attached letter dated April 11, 1988 requesting an official standards interpretation of 1926.50(c).
E. Enforcement Guidelines.
As noted in the attached interpretation, the words “reasonably accessible in terms of time and distance to the worksite,” contained in 1926.50(c), have been interpreted by Federal OSHA to “generally mean 3 to
4 minutes from a medical facility to any portion of the worksite where employees are or may be working.”
In the absence of a medical facility within 3 to 4 minutes response time, 1926.50(c) requires that “a person who has a valid certificate in first aid training … or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid.”
ATTACHMENTS: Federal OSHA Interpretation of 1926.50(c).
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIO NS&p_id=18470&p_text_version=FALSE
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIO NS&p_id=18580&p_text_version=FALSE
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DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner for VOSH VOSH Technical Services Director Directors and Supervisors Compliance Safety and Health Staff Voluntary Compliance and Training Staff OSHA Regional Administrator, Region III
Water Treatment Facilities Safety ProgramDoc ID: Local
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DOLI Virginia Occupat ional Safety & Health VOSH
VOSH PROGRAM DIRECTIVE: 14-430C [CORRECTION] ISSUED: 01 November 2013
SUBJECT Local Emphasis Program - Wastewater and Water Treatment Facilities
Purpose This Directive continues the local emphasis program (LEP) which was established in 1996 to monitor existing workplace safety and health hazards efforts in Wastewater and Water Treatment facilities.
This revision expands the coverage of this local emphasis program to include both public and private sector wastewater and water treatment facilities.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies to VOSH state-wide.
Reference Not Applicable.
Cancellation VOSH Program Directive 14-430B (April 1, 2003) [CORRECTION]
Effective Date 01 November 2013
Action The Director of VOSH Safety and all Regional Directors and Compliance Managers shall ensure that procedures established in this Directive are adhered to for conducting inspections at water treatment and waste water treatment facilities.
William P. Burge Acting Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Manager Assistance Commissioner VOSH Compliance and Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III and Norfolk Area Offices Legal Support and IMIS Staffs
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[TABLE 1-1]
| DOLI Virginia Occupat ional Safety & Health VOSH |
DOLI | DOLI |
| | VOSH
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I. Background.
The Virginia Occupational Safety and Health (VOSH) Program has established this Directive specifically for waste water and water treatment operations based on recognized industry hazards. Wastewater and water treatment facilities are workplaces which offer a potential for a variety of serious hazards. Commonly recognized industry hazards, such as: confined spaces, process safety, lockout/tagout, exposure to toxic chemicals, noise, improper selection of respiratory protection and personal protective equipment, as well as slip and fall hazards can exist in these workplaces.
Wastewater treatment facilities under the purview of this LEP cover the following NAICS code: 221320. This industry comprises establishments primarily engaged in the collection, treatment, and disposal of wastewater through a sewer system.
Water treatment facilities under the purview of the LEP cover the following NAICS code: 221310. This industry
comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems. The water supply system may include pumping stations, aqueducts, and/or distribution mains. The water is primarily used for drinking or domestic use to the public.
Establishments with fewer than 10 workers shall be included in this LEP.
II. Procedures.
The Director of Health Compliance will develop regional inspection lists made up of establishments identified as wastewater and/or water treatment facilities, as defined above.
A. Sources. Lists of wastewater treatment facilities shall be obtained through the Virginia Department of Environmental Quality Wastewater Treatment Division. Lists of water treatment facilities shall be obtained through the Virginia Department of Health, Office of Drinking Water.
B. Deletions. Prior to using the wastewater treatment and water treatment lists for scheduling purposes, deletions to each annual list will be made based on local knowledge by region or field office, as necessary or appropriate. When it becomes evident that a facility is not conducting wastewater or water treatment operations, the facility shall be deleted from the list.
C. Additions. Any information from local sources which reliably indicates that an establishment should be added to the list shall be forward to the Director of Occupational Health for inclusion in the next year’s list.
III. Inspection Scheduling.
D. Each region shall receive two (2) lists, as follows
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Wastewater Treatment Plants – To be inspected
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Water Treatment Plants – To be inspected
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B. Regional and Field Office shall conduct at least two (2) LEP inspections from the two (2) establishment lists in each Fiscal Year.
C. When an inspection is not conducted because the employer has refused entry, a warrant shall be sought in accordance with the current procedures for handling such refusals.
D. Inspections conducted under the LEP normally shall be comprehensive.
IV. Database Entry Coding. The majority of inspections conducted under this LEP will be “Health” inspections and in such cases should be coded as such.
E. Planned/Targeted Inspections. LEP inspections of firms that are planned or targeted as a result of this EP, inspection type will be coded as “Programmed Planned” and then classification coded as an LEP
specifically indicating “WASTEH2O”.
B. Referral Inspections. Inspections that are conducted as a referral and inspected during the current inspection cycle under this LEP will be coded as “Programmed Related” and then classification coded as an LEP specifically “WASTEH2O”. Where “Program Related” inspections are conducted, they will be so indicated on the VOSH-1.
C. Complaint Inspections. Inspections under this LEP that are conducted as a result of a complaint or fatality/catastrophe will be coded as “Unprogrammed Related” and then classification coded as an LEP specifically indicating “WASTEH2O”.
The new “WASTEH2O” code applies to the following enforcement forms: VOSH-1, OSHA-7, OSHA-36, OSHA-90 and OSHA-55.
Whenever a consultation visit is made in response to this LEP, the Consultation Request form and Visit form are to be completed with the LEP code “WASTEH2O” on Form-20 and Form-30.
V. Follow-Up/Questions.
Programmatic difficulties and problems experienced with the implementation of this LEP shall be forwarded to the Occupational Health Compliance Director. Based on input by the regions, as well as the overall evaluation by the Director, amendments to this LEP shall be made as necessary in order to continue promoting workplace health and safety.
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Reverse Signal Operation Safety ProgramDoc ID: Local
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DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-219D ISSUED: 01 September 2018
SUBJECT: State Emphasis Program: Reverse Signal Operation of Vehicles, Machinery and Equipment and Heavy Equipment (Generally)
Purpose CHANGE II: This Change updates the coding system from Integrated Management Information System (“IMIS”) to the current OSHA Information System (“OIS”). CHANGE I. This directive establishes a State emphasis program (SEP) for reverse signal operation activities covered by the new regulation, 16 VAC 25-97, and continues the existing emphasis program for other heavy equipment.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies to all VOSH personnel, and specifically to Occupational Safety Compliance and Consultation Services Personnel.
Reference Not applicable.
Cancellation VOSH Program Directive 14-219C, State Emphasis Program: Heavy Equipment (15 August 2009)
Action Directors and Managers shall assure that procedures established in this directive are adhered to in scheduling and conducting inspections which comply with this State emphasis program.
Effective Date CHANGE II: 15 September 2018 CHANGE I: 18 September 2009
Expiration Date Not Applicable – remains in effect until cancelled or superseded.
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Consultation Services Director Assistant Commissioner VOSH Compliance & Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH DLS and OIS Staffs
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[TABLE 1-1] DOLI | Virginia Occupational Safety & Health | VOSH
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I. Background and Summary.
Because of a continuing pattern of work-related vehicular incidents and fatalities, and the recent adoption of the unique VOSH regulation on Reverse Signal Operation Safety Requirements for Vehicles, Machinery and Equipment in General Industry and the Construction Industry, 16VAC25-97, VOSH enforcement has determined that the State emphasis program effort targeting heavy equipment should be expanded to include the full scope of reverse signal operations covered by the new regulation and related amended standards. This State emphasis program, by increasing VOSH enforcement presence, will heighten general industry and construction industry awareness of hazardous conditions or situations existing on their worksites concerning reverse signal operation hazards.
See VOSH Directive 12-240, Reverse Signal Operation Safety Requirements for Motor Vehicles, Machinery and Equipment in General Industry and the Construction Industry, 16VAC25-97, for the text of the regulation.
See also VOSH Directive 02-240, Reverse Signal Operation Safety Requirements for Motor Vehicles, Machinery and Equipment in General Industry and the Construction Industry, 16VAC25-97, Inspection Procedures and Interpretations, or its successor.
II. Procedures.
- All compliance personnel shall be instructed to be on the lookout for general industry and construction activities in which reverse signal operation activities or heavy equipment vehicles may be in use. Every observation of these general industry and construction vehicles in use shall be handled as follows:
a. Regardless of whether a violation is observed, whenever a CSHO sights or receives any other notice of a general industry or construction operation in which covered equipment is being used (including nonformal complaints, other government agency referrals, and reports from members of the public), the CSHO shall:
(1) Make an inspection of back-up alarms and labeling (e.g., warnings of operation, load capacities, etc.) on such vehicles.
(2) Make note of the state and condition of the work operation, insofar as it is known, including any apparent serious hazards.
(3) Note the name and address or location of the worksite and the contractor (where applicable) performing the operation, if known.
(4) Note whether violations or unsafe conditions are observed in plain view. Refer to paragraph II.1.c., below, if no violations or unsafe conditions are observed.
(5) Determine if the employer and employees are familiar with the requirements of the reverse signal operation regulation and whether drivers of covered equipment and designated observers/ground guides have been trained in the requirements of the regulation.
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b. All activities involving covered equipment in general and construction work industries that are brought to the attention of the CSHO shall be inspected if violations or unsafe conditions are observed in plain view. The CSHO shall notify his supervisor at the earliest convenient time that an inspection has been opened pursuant to this SEP.
c. No inspection of the worksite shall be conducted if it is apparent that the back-up alarm is functioning, the training requirements of the reverse signal operation regulation have been met, the equipment is properly labeled and no other violations or other hazardous conditions appear in plain view. When no inspection is conducted, the CSHO shall record this for the purposes of the OIS system according to the guidelines in paragraph III.C.
d. Nonformal complaints and referrals in general industry and construction operations involving reverse signal operation activities or heavy equipment shall be scheduled as unprogrammed inspections under this SEP, conducted in accordance with the VOSH FOM.
Such notices, therefore, need not be responded to with the usual letter to the employer.
- Although sightings will normally be those which occur during the course of routine travel during duty or nonduty hours, the discovery of these work activities may be the result of a specific search
to find activities involving reverse signal operation activities or heavy equipment.
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Documentation of the events leading up to the observation or the reporting of general industry and construction activities involving heavy equipment shall be maintained by the Regional Office in case of denial of entry.
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When an inspection is not conducted because consent has not been obtained, a warrant normally shall be sought in accordance with the current procedures for handling such cases. A warrant may not be necessary if the violations are in plain view.
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The scope of inspections conducted under this SEP shall normally be limited to activities relating to activities involving the use of heavy equipment, generally, and reverse signal operation activities, in particular. If the inspection is to be expanded, the principles given in the VOSH FOM shall be followed and are hereby incorporated by reference for application to both planned and unprogrammed inspections under this SEP.
III. Recording in OIS. The following guidelines shall be applied when recording inspections conducted under this SEP and during other inspections in general or construction industries activities involving reverse signal operation activities or heavy equipment.
A. Programmed Inspections. A programmed inspection conducted under this SEP shall be coded as “HVYEQUIP” in the State Emphasis Program block and as “Programmed Planned” in the Initiating Type block OIS. Inspections under this SEP will be typically coded as “Safety” inspections in the “Inspection Category” block.
B. Complaint Inspections. On the OIS Inspection Form, inspections involving reverse signal operation activities or heavy equipment which are initiated as a result of a complaint, referral, or fatality/catastrophe, shall be coded as “HVYEQUIP” in the State Emphasis Program block and as the appropriate “unprogrammed” activity in the Initiating Type block regardless of whether they are listed on a cycle list.
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C. No Inspection Conducted. When no inspection of reverse signal operation activities or heavy equipment is conducted for any of the reasons listed in I.1. through I.5 of VOSH Program Directive 14-221D, or its successor, OIS shall be updated in the “Reason No Inspection” block.
Note: If you have any questions regarding the proper way to record in OIS, please contact the VOSH OIS section.
Attachment: None
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Virginia Amputation Prevention ProgramDoc ID: National
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Virginia Occupational Safety & Health
DOLI VOSH
VOSH PROGRAM DIRECTIVE: 14-233B ISSUED: 01 February 2016
Subject National Emphasis Program on Amputations
Purpose This directive transmits to field personnel policies and procedures for implementing a National Emphasis Program (NEP) to identify and to reduce workplace machinery and equipment hazards which are causing or likely to cause amputations.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies VOSH-wide. This directive applies to all VOSH personnel.
Note: Because of limited funding and staffing resources, VOSH will not participate in the outreach component of this Directive, ' VIII.A. on page 3 of the attachment. However, VOSH may schedule a limited number of training programs if a speaker is identified and staffing and funding are available.
References CHANGE I: OSHA Instruction CPL 2-1.35 (26 March 2002) CHANGE II: OSHA Instruction CPL 03-00-003 (27 October 2006) CHANGE III: OSHA Instruction CPL 03-00-019 (13 August 2015)
Cancellation CHANGE I: VOSH Program Directive 14-233 (April 1, 2003).
CHANGE II: VOSH Program Directive 14-233A (April 1, 2007)
Effective Dates CHANGE I: 01 April 2003 CHANGE II: 01 April 2007 CHANGE III: 01 December 2015
Expiration Date Not Applicable
Action Directors and Managers shall ensure that policies and procedures established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
C. Ray Davenport Commissioner
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[TABLE 1-1] | Virginia Occupational Safety & Health
DOLI VOS |
DOLI | DOLI | VOS
[/TABLE]
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Distribution: Commissioner of Labor and Industry Director of Cooperative Programs Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH Legal Support & IMIS Staffs
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Summary
This Directive describes policies and procedures for VOSH implementation of a National Emphasis Program (NEP) to identify and to reduce workplace machine and equipment hazards which are causing or likely to cause amputations. A detailed analysis of the targeted industries has been conducted by federal OSHA to determine their continued coverage in this NEP.
Data from general industry and the targeted industries suggest that amputation related inspections were being under-reported. The intent of this NEP is to target workplaces with machinery and equipment that cause (or are capable of causing) amputations, while maximizing the Agency’s inspection resources. Use of the OIS code “AMPUTATE” is required to code and track these activities.
Significant Changes
This Directive expands the 2006 NEP on Amputations.
The revised targeting methodology is based on up-to-date data from OIS/IMIS and BLS sources.
The industry scope of this NEP is based on 2012 NAICS code.
Appendix C Amputations Targeting Methodology explains how the NAICS codes were selected.
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TABLE OF CONTENTS
I. Purpose ................................................................................................................................................................ 1 II. Scope..................................................................................................................................................................... 1
III. References ........................................................................................................................................................... 1 IV. Cancellations ........................................................................................................................................................ 2
V. Expiration Date .................................................................................................................................................... 2 VI. Action ................................................................................................................................................................... 2
VII. Application........................................................................................................................................................... 2
VIII. Background .......................................................................................................................................................... 3 IX. Program Procedures ............................................................................................................................................ 3
X. Scheduling and Resource Allocation ..................................................................................................................... 5 XI. Training ................................................................................................................................................................ 6
XII. Program Evaluation .............................................................................................................................................. 6 XIII. Relationship to Other Programs .......................................................................................................................... 7
XIV. Targeting Methodology ....................................................................................................................................... 7
XV. Reporting, Recording and Tracking .................................................................................................................... 10 XVI. Establishment Identification ............................................................................................................................. 10
XVII. New Rule .......................................................................................................................................................... 10 XVIII. VOSH Enforcement Policy ............................................................................................................................... 11
XIX. VOSH Citation Policy .......................................................................................................................................... 12 APPENDIX A: Machinery and Equipment .............................................................................................................. A-1
APPENDIX B: Related ANSI/ASME Standards ........................................................................................................ B-1
APPENDIX C: Amputations Targeting Methodology .............................................................................................. C-1
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I. Purpose. This Directive describes policies and procedures for implementing OSHA’s National Emphasis Program (NEP) to identify and to reduce workplace hazards from machines and equipment which cause or are likely to cause amputations. An “Amputation” is defined as a “traumatic loss of limb or other external body part. (http://www.bls.gov/iif/osh_oiics_2010_2_1_2.pdf). Amputations include a part, such as a limb or appendage that has been severed, cut off, amputated (either completely or partially); fingertip amputation with or without bone loss; medical amputations resulting from irreparable
damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalping, severed ears, or broken or chipped teeth”.
II. Scope. This Instruction applies VOSH-wide.
III. References.
A. Part 1910, Subpart J, General Environmental Controls, §1910.147, The Control of Hazardous Energy (Lockout/Tagout).
B. Part 1910, Subpart O, Machinery and Machine Guarding.
C. Part 1910, Subpart P, Hand and Portable Powered Tools & Other Hand-Held Equipment.
D. OSHA’s Safety and Health Management Guidelines, 54 FR 3904, January 26, 1989.
E. Executive Order 12196, Section 1-201.
F. OSHA Standards 29 CFR 1960.16, Compliance with OSHA Standards.
G. OSHA Publication 3157, A Guide for Protecting Workers from Woodworking Hazards.
H. OSHA Safety and Health Topics Web Page, Machine Guarding, http://www.osha.gov/SLTC/machineguarding/index.html.
I. OSHA Safety and Health Topics Web Page, Control of Hazardous Energy, http://www.osha.gov/SLTC/controlhazardousenergy/index.html.
J. Bureau of Labor Statistics (BLS), Table R1. Number of Nonfatal Occupational Injuries and Illnesses Involving Days Away From Work by Industry and Selected Natures of Injury or Illness, (Calendar year 2009, 2010, 2011, 2012 and 2013)
http://www.bls.gov/news.release/pdf/osh2.pdf
K. Bureau of Labor Statistics (BLS), Table R5. http://www.bls.gov/iif/oshcdnew.htm Incidence Rates for Nonfatal Occupational Injuries and Illnesses by Involving Days Away From Work per 10,000 Full-Time Workers by Industry and Selected Natures of Injury or Illness, (Calendar year 2009,
2010, 2011, 2012 and 2013).
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L. Bureau of Labor Statistics (BLS), Table R25. Number of Nonfatal Occupational Injuries and Illnesses Involving Days Away From Work by Source of Injury or Illness and Selected Natures of Injury or Illness, (Calendar year 2009, 2010 and 2011, 2012 and 2013).
M. Executive Office of the President, Standard Industrial Classification Manual, 1987.
N. Executive Office of the President, North American Industry Classification System, United States, 1997.
O. Executive Office of the President, North American Industry Classification System, United States, 2002.
P. Executive Office of the President, North American Industry Classification System, United States, 2012
Q. Occupational Safety and Health Act of 1970 [29 U.S.C. §654(a)(1 - 2)].
R. VOSH PD 01-010, Local Emphasis Programs: Development and Approval of Special Targeting Activities (02/15/14).
S. VOSH PD 02-051A, Scheduling System for Programmed General Schedule Inspections (02/22/90).
T. VOSH PD 01-015A, State Plan Policies and Procedures Manual (Through CH-5) (03/01/96).
U. VOSH PD 02-001G, VOSH Field Operations Manual (FOM) (10/01/03).
V. VOSH PD 02-003P, VOSH Procedures to Comply with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act, OSHA Instruction CPL 2-0.51J [when inspecting employers with ten or fewer employees]; Revision of Appendix A.
IV. Cancellations. VOSH PD 14-233A, National Emphasis Program on Amputations (01 April 2007).
V. Expiration Date. Not Applicable.
VI. Action. VOSH Directors and Managers must ensure that the policies and procedures set forth in this directive are followed. The Assistant Commissioner shall encourage Consultation Program’s involvement in this effort.
VII. Application. This Directive applies to general industry workplaces, where any machinery and equipment
that are likely to cause amputations are present. Appendix A lists many of the machinery and equipment most often associated with amputations. Appendix B lists many National Consensus standards that provide guidance in complying with VOSH standards.
VIII. Background. The operation of machinery and equipment can be extremely dangerous. Injuries involving machinery and equipment often result in death or permanent disability. OSHA’s more than 40-year inspection experience indicates that employee exposures to unguarded or inadequately guarded 2
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machinery and equipment, together with associated hazardous energy employee exposures during servicing and maintenance activities, occur in many workplaces. Like OSHA, VOSH workplace requirements prescribe measures for the safe operation, servicing and maintenance of machinery and equipment, e.g., §§1910.147, 1910.212, 1910.213, 1910.217, and 1910.219.
IX. Program Procedures. This NEP includes four major activities: outreach, targeting/selection, inspection,
and program approval.
A. Outreach. Because of limited funding and staffing resources, VOSH will not participate in the outreach component of this Directive. However, VOSH may schedule a limited number of training programs if a speaker is identified and staffing and funding are available.
B. Targeting/Site Selection. Inspections conducted under this NEP must be scheduled and conducted pursuant to the following procedures.
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Each Regional Office shall receive an Inspection Register for this NEP from the Headquarters office. These Registers may be developed by DOLI IT in-house or developed by federal OSHA for use by VOSH.
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Regional Offices shall follow the guidelines set forth in VOSH PD 02-003P, VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the Appropriations Act, OSHA Instruction CPL 2-0.51J when inspecting employers in low hazard industries with ten or fewer employees; Revision of Appendix A (04/01/15), or its successor. This appropriations act prohibits the use of federal funds for a VOSH inspection of an employer in a low hazard industry that has 10 or fewer employees currently and at all times during the previous 12 months.
Establishments in a low hazard industry with 10 or fewer employees are not to be included on the program targeting list unless approval for the use of 100% state funding has been authorized.
- Headquarters or the Regional Office may add to the Register of general industry establishments where amputation injuries or fatalities related to machinery and equipment have occurred in the five years preceding the effective date of this directive.
If additions are made to the Register, it must be re-randomized prior to using the RANDBETWEEN function in Microsoft Excel to assign new random numbers.
Headquarter’s local evidence of amputations may be based on OIS accident data,
workers’ compensation data, OSHA 300 data, NIOSH data, and other reliable sources of information, e.g., reports of amputations from hospital admissions, emergency medical services, fire department, and police reports.
- Deletions. Based on local knowledge, the Regional Office may delete establishments from the Register that are deemed not likely to have the targeted machinery and equipment, or firms known to be out of business, documenting the basis for such determinations. Any establishment, other than those where amputations are known to have occurred, in the previous five (5) years that has had a comprehensive safety inspection in the previous 24 months, will be deleted from the list. 3
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- New Business. CSHOs will proceed with the programmed inspection where it has been determined that a new business is using the same plant and equipment of the previous business. CSHOs will proceed with the programmed inspection where it has been determined that a new business is using the same plant and equipment of the previous business. Also refer to VOSH Program Directive 02-050A (15 Dec 2013) regarding
guidance for programmed inspection of establishments.
C. Cycle Generation. The “Inspection Cycle” is defined as a subset of establishments from the entire Inspection Register which, by definition, is already randomized. Creating cycles from a randomized list allows VOSH to use its enforcement resources more efficiently. Inspecting firms within a cycle in the order that makes the most efficient use of VOSH’s resources does not diminish the plan’s neutrality. Rearranging firms’ order within the cycle is not discriminatory because all establishments in the cycle must be inspected; and it is reasonable because it furthers VOSH’s legitimate goal of efficient resource allocation.
The Regional Office can schedule inspections in the following manners
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If the Regional Office intends to inspect the entire Register, it can schedule the inspections in any order. If the Regional Office uses this method, it must account, through inspections and deletions, for the entire Register. The Regional Office cannot inspect off a new Register until the entire previous Register is completed.
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The Regional Office can inspect the facilities in the random number order provided by the Register. If the Regional Office uses this method, it does not need to complete the entire Register.
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The Regional Office can create cycles by choosing a set number of establishments from the Register which is sorted in random number order. For example, the Regional Office can select the first ten establishments on the Register sorted by ascending random number as a first cycle of ten (10) establishments. The Regional Office can then inspect those ten (10) establishments in the cycle in any order, but must finish the cycle prior to beginning a second cycle. Once the first cycle of ten (10) is complete, the office can select the next ten establishments from the Register as its second cycle.
D. Inspection Procedures. Inspections initiated under this NEP will be scheduled and conducted in accordance with provisions of the VOSH FOM, Chapter 5, Inspection Procedures, except as noted
below
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Once an inspection has been scheduled in the Regional Office and assigned for the identified establishment, the CSHO will review the OSHA Public Inspection Data Web Page for the employer’s citation and fatality/accident history prior to the opening conference.
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At the opening conference, the CSHO will verify with the employer whether any of the machinery and equipment in Appendix A or any other machinery and equipment that could cause amputations are present in the workplace. If any machinery and equipment 4
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associated with amputations are present in the workplace, the CSHO should exercise professional judgment in conducting an inspection of the machinery and equipment with particular attention to employee exposure to nip points, pinch points, shear points, cutting actions, and other point(s) of operation. The CSHO should consider and evaluate employee exposures during any of the following:
Regular operation of the machine; Setup/threading/preparation for regular operation of the machine; Clearing jams or upset conditions; Making running adjustments while the machine is operating; Cleaning of the machine; Oiling or greasing of the machine or machine pans; Scheduled/unscheduled maintenance; and Locking out or tagging out.
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OSHA 300 logs, and 301 incident reports for current and previous three (3) years will be reviewed during the inspection in order to identify recorded amputations associated with machinery and equipment.
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Inspections will be scheduled beginning with the current fiscal year, and will continue until further notice or until all establishments on the list have been inspected.
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Regional Directors, Supervisors, and CSHOs should ensure that the requirements for VOSH FOM, Chapter 9, Case File Documentation, and the requirements for significant cases in VOSH FOM, Chapter 12, are being met.
E. Program Approval. Inspection programs that deviate from this NEP must first be approved by the VOSH Safety Compliance Director.
X. Scheduling and Resource Allocation. This is a National initiative which affects existing VOSH inspection scheduling priorities, as indicated below:
A. Resources. The Safety Compliance Director shall ensure that adequate resources are designated for this NEP.
B. Planning. The Safety Compliance Director shall report to the Assistant Commissioner the number of NEP inspections that are planned for each fiscal year.
C. Priority. Inspections conducted under this NEP may have a lower priority than inspections conducted under other targeting initiatives mandated by VOSH, but have a higher priority than other scheduled programmed inspections from regular targeting initiatives. When possible, inspections conducted under this NEP will be combined with other programmed and unprogrammed inspections. This NEP may be combined with other existing initiatives, such as other National or Local Emphasis Programs which identify targets on a different basis.
D. Voluntary Protection Program (VPP) Sites. This National initiative exempts participating worksites. VPP sites will be removed from VOSH’s programmed inspection lists of targeted 5
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sites, for the duration of their approved participation in the VPP. An unapproved VPP applicant worksite will be removed from the programmed inspection lists no more than 75 days prior to the commencement of its scheduled pre-approved onsite review. The site will remain off those lists until approved VPP participant has withdrawn or been terminated.
XI. Training. Because of the technical nature of some of these inspections and/or machinery and
equipment, CSHOs, who conduct inspections under this NEP, must have had adequate training or experience with both general and specific machine guarding concepts and techniques as well as with hazardous energy control (lockout/tagout) program requirements.
A. Additional Training.
-
On-the-Job Training. The Safety Compliance Director shall ensure that inexperienced CSHOs receive on-the-job training by accompanying experienced CSHOs during these NEP inspections.
-
Enforcement Issues. Continuing guidance regarding enforcement issues will be provided by Headquarters as new issues arise.
XII. Program Evaluation. The Regional Safety Director will collect all data relevant to the operation and results of this NEP and submit them to the Safety Compliance Director who will analyze the data and develop summary conclusions of program efficiency and effectiveness and forward this evaluation to the Assistant Commissioner. At a minimum, this evaluation should include the requirements of VOSH PD 01-010, Local Emphasis Programs: Development and Approval of Special Targeting Activities (02/15/14), or its successor.
XIII. Relationship to Other Programs.
A. Unprogrammed Inspections. If an unprogrammed inspection, e.g., complaint, fatality/catastrophe, or referral, at an establishment coincides with respect to a programmed inspection under this NEP, the two inspections may be conducted either concurrently or separately, at the discretion of the Regional Office.
B. Other Emphasis Programs. If an establishment scheduled for inspection pursuant to this Amputation NEP is also scheduled for inspection under another NEP or LEP, the inspections may be conducted concurrently. CSHOs will apply applicable OIS codes to the inspection. The employer’s number must also be recorded for each inspection. (See also Section XV.)
In such case of an establishment scheduled for inspection under both this Amputation initiative and another NEP/LEP, the scope of the inspection shall be limited to the safety and health issues targeted by the other NEP/LEP program, as well as any machinery and equipment hazards which are causing or likely to cause amputations and are in plain view.
C. Consultation Inspections. Consultations accomplished in support of this directive should input the following into the corresponding fields on the Request Form, the Visit Form (Form 30), and the Intervention Form (66); and in OIS Request, Visit and Compliance Assistance Activity, as applicable: 6
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Field Name Input National Emphasis AMPUTATE
XIV. Targeting Methodology.
The following updated NAICS Codes were derived through a progression of evaluating data from primarily four factors:
- OSHA’s Integrated Management and Information System (IMIS)
- OSHA’S Information System (OIS)
-
High Amputation rates from the Bureau of Labor and Statistics (BLS)
-
High Amputation numbers from BLS
See Appendix C: Amputations Targeting Methodology for further explanation of the targeting methodology.
7
[TABLE 11-1] | Field Name | | | Input | National Emphasis | | | AMPUTATE | |
[/TABLE]
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8
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9
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XV. Reporting, Recording and Tracking.
A. OIS Coding. The inspection must be marked as “Programmed Planned” as the Initiating type, “AMPUTATE” needs to be selected in the “National Emphasis Program” field and “AMPUTATE” must be selected as the “Primary Emphasis Program”. The Amputations inspections are being coded under the NEP for ease of tracking.
B. Complaint Inspections. Whenever an OSHA-7 or OIS Complaint UPA is completed by a Federal office and the applicable complaint alleges the presence of amputation hazard, complete the OIS Complaint UPA in the usual manner, and select “AMPUTATE” as the “National Emphasis Program” on the “Program Info” tab.
C. Fatality and Catastrophe Inspections. Whenever a OIS Fat/Cat UPA is completed by a Federal office and the inspecting CSHO is able to identify at the site of the fatality/catastrophe the presence of amputation hazards, complete the OIS Fat/Cat UPA in the usual manner. Select “AMPUTATE” as the “National Emphasis Program” on the “Program Info” tab.
D. Referral Inspections. Whenever an OIS Referral UPA is completed by a Federal office and the applicable referral case has amputation hazards as one of the subjects, complete the OIS Referral UPA in the usual manner and select “AMPUTATE” as the “National Emphasis Program” on the “Program Info” tab.
XVI. Establishment Identification. If the DUNS number of an inspected establishment is known, it must be recorded in the appropriate field on the Establishment Detail Screen. The establishment Detail Screen can be accessed by selecting “Search Establishment” from the OIS-Navigation menu on the Home Page.
XVII. New Rule. Occupational Injury and Illness Recording and Reporting Requirements – NAICS Update and Reporting Revisions.
Part 1904 has new requirements for reporting work-related fatalities, hospitalizations, amputations or losses of an eye. The new rule, which also updates the list of employers partially exempt from VOSH record-keeping requirements, went into effect in Virginia on September 15, 2015. As part of this NEP, if a report of amputation is received and the employer’s classified activity is one of the identified NAICS codes, the Regional Office will conduct an inspection based on the Serious Injury Report (SIR) guidance. 10
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Employers have three options for reporting an event
During normal business hours, telephone the VOSH Office that is nearest to the site of the incident.
Use the central toll-free number of either federal OSHA or the Virginia State Police.
Federal OSHA has developed an online reporting tool that can be used by Virginia employers to report amputations electronically, please click on link below:
http://www.osha.gov/pls/ser/serform.html
There are two major changes to the reporting requirements
A. Expansion of the Types of Incidents Reported. Reporting under Part 1904 continues to require the reporting of all work-related fatalities, but now includes the reporting of all work-related in-patient hospitalizations, as opposed to the previous reporting threshold of three (3) or more in-patient hospitalizations.
New reporting requirements include all amputations and all losses of an eye.
B. Reporting Timeframe for the Employer.
Due to a legislative drafting error in the revision to §40.1-51.1.D, the statute is not identical to the federal OSHA requirement to report in-patient hospitalizations, amputations and loss of an eye within 24 hours. The Virginia statute mistakenly requires an eight (8) hour reporting period for all of these incidents listed in “A” above, not just fatalities.
As explained below, the Department is taking steps to mitigate any damage caused by the above error. (See XVIII and XIX) XVIII. VOSH Enforcement Policy
No citations or penalties will be issued in instances where an in-patient hospitalization, amputation or
loss of an eye are reported within OSHA's requirement of 24 hours, but not within the eight (8) hours required by §40.1-51.1.D. Instead, a de minimis violation will be noted in the case file in accordance with §40.1-49.4.A.2.
A "de minimis" violation is one that has no direct or immediate relationship to safety and health. A de minimis violation for the fact situation described above is appropriate because the reporting period requirement has no direct safety or health impact on the cause of the reportable incident that resulted in an employee being injured. Whether an employer fails to meet the reporting requirement post-accident has no bearing on and could not have prevented the accident from occurring.
De minimis violations are not captured in the OSHA Information System (OIS) that is used by the Department to record inspection data so there will be no negative impact on an employer's safety and health inspection history. 11
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XIX. VOSH Citation Policy
The new reporting requirements in §40.1-51.1.D will be cited as follows
- Fatalities – when not reported within 8 hours, cite per current VOSH Field Operations Manual (FOM)
policy with an unadjusted penalty of $5,000.00 as a violation of §40.1-51.1.D (not as a violation of 1904.39)
-
In-patient hospitalizations of one or more persons, amputations, loss of an eye THAT RESULT IN AN INSPECTION – when not reported within 24 hours, cite as an other-than-serious violation of a violation of §40.1-51.1.D (not as a violation of 1904.39) with an adjusted penalty of $1,000.00. If circumstances indicate that the failure to report an incident was willful, an unadjusted penalty of $5,000.00 will be issued.
-
In-patient hospitalizations of one or more persons, amputations, loss of an eye THAT DO NOT RESULT IN AN INSPECTION – no citation for failure to report within 24 hours will be issued for the first occurrence. If the same employer fails to report a second occurrence within 24 hours, an inspection may be scheduled to allow for the possible issuance of a citation for failure to report (even if the specific incident would normally have been handled as a Rapid Response Investigation
(RRI)).
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A-1
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B-1
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B-2
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C-1
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C-2
Severe Violator Enforcement Program (SVEP) GuidelinesDoc ID: Severe
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DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 02-024A ISSUED: 01 September 2013
Subject Severe Violator Enforcement Program (SVEP)
Purpose CHANGE I: This Directive transmits to VOSH compliance personnel policies and procedures for VOSH’s Severe Violator Enforcement Program (SVEP), which concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations. It also replaces OSHA’s Enhanced Enforcement Program (EEP), which was not adopted by VOSH. CHANGE II: This change transmits guidance on removing employers from the Severe Violator Enforcement Program (SVEP) after a period of three years from the date of final disposition of the SVEP inspection citation items.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies to all VOSH personnel.
Reference CHANGE I: OSHA Instruction CPL 02-00-149 (June 18, 2010);
CHANGE II: Memorandum from Thomas Galassi, Director of Enforcement Programs (16 August 2012).
Cancellation VOSH Program Directive 02-024 (01 April 2011).
Effective Date CHANGE I: 01 April 2012 CHANGE II: 01 September 2013
Action Directors and Managers shall ensure that the policies and procedures established in this Directive are followed.
Courtney M. Malveaux Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Manager Assistant Commissioner - Programs VOSH Compliance and Cooperative Programs Staffs VOSH Directors and Managers OSHA Regional III and Norfolk Area Offices Legal Support and IMIS Staffs
Attachments: Severe Violator Enforcement Program (SVEP) and Memorandum from Thomas Galassi (16 August 2012) 1
[TABLE 1-1]
| | DOLI VOSH Virginia Occupational Safety & Health | | | |
| | DOLI | | VOSH | |
DOLI | DOLI | DOLI | | | VOSH |
[/TABLE]
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When the instructions, as set forth in this Program Directive, are applied to the Department of Labor and Industry and/or to Virginia employers, the following federal terms, if and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Assistant Commissioner
Area Director Regional Director or VOSH Program Director
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO And/or Industrial Hygienist
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TABLE OF CONTENTS
I. Purpose ......................................................................................................................................................................... 1
II. Scope… .......................................................................................................................................................................... 1 1
III. References ..................................................................................................................................................................... 1
IV. Cancellations ................................................................................................................................................................. 1
V. Background ................................................................................................................................................................... 1
VI. Handling Severe Violator Enforcement Cases ............................................................................................................... 1
VII. Criteria for a Severe Violator Enforcement Case .......................................................................................................... 2 A. Fatality/Castastrophe Criterion….. ......................................................................................................................... 2 B. Non-Fatality/Catastrophe Criterion Related to High-Emphasis Hazards................................................................ 2 C. Non-Fatality/Catastrophe for Hazards Due to the Potential Release of a Highly Hazardous Chemical (Process Safety Management) .................................................................................... 2
D. Egregious Criterion ................................................................................................................................................. 3
VIII. Definition of High-Emphasis Hazards ............................................................................................................................ 3 E. Fall Hazards Covered Under General Industry Standards ...................................................................................... 3 B. Fall hazards Covered Under Construction Industry Standards. .............................................................................. 3 C. Amputation Hazards ............................................................................................................................................... 4 D. Combustible Dust Hazards ...................................................................................................................................... 4 E. Crystalline Silica Hazards ....................................................................................................................................... 4 F. Lead Hazards ........................................................................................................................................................... 4 G. Excavation/Trenching Hazards ............................................................................................................................... 4 H. Electrocution Hazards ............................................................................................................................................. 5
IX. Hazards due to the potential release of a highly hazardous chemical (Process Safety Management) ........................................................................................................................................................ 5
X. Enforcement Considerations - Two or More Inspections of the Same Employer ....................................................... 5
XI. Procedures of the Severe Violators Enforcement Program (SVEP) .............................................................................. 5 A. Enhanced Follow-up Inspections ............................................................................................................................ 5 B. Statewide Inspections of Related Workplaces/Worksites...................................................................................... 6 C. Increased Company Awareness of VOSH Enforcement ......................................................................................... 9 D. Enhanced Settlement Provisions .......................................................................................................................... 10 E. Petitioning Court to Enjoin Violations of VOSH Standards, Rules and Regulations ............................................. 10
XII. SVEP Log ...................................................................................................................................................................... 11 F. General ................................................................................................................................................................ 11 11 B. Lining-Out Establishments from the SVEP Log ..................................................................................................... 11
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XIII. Relationship to Other Programs ................................................................................................................................. 11 A. Unprogrammed Inspections ................................................................................................................................. 11 B. Programmed Inspections ...................................................................................................................................... 11
XIV. Recording and Tracking inspections ............................................................................................................................ 11 C. SVEP Code ........................................................................................................................................................... 11 B. NEP Codes for High-Emphasis Hazards ............................................................................................................... 11 C. Significant Enforcement Actions and Enhanced Settlement Codes ................................................................... 11 D. Other Program Codes.......................................................................................................................................... 12
XV. Dun & Bradstreet Number .......................................................................................................................................... 12
XVI. End of the Fiscal Year Report ...................................................................................................................................... 12
Appendix A. Information Needed for Monthly Report ....................................................................................................... A-1
Appendix B. CSHO Guidance: Determining Company Structure.......................................................................................... B-1
Appendix C. Sample Letter to Company Headquarters ....................................................................................................... C-1
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I. Purpose.
This Directive establishes enforcement policies and procedures for VOSH's Severe Violator Enforcement Program (SVEP), which concentrates resources on inspecting employers who have demonstrated indifference to VOSH laws and regulations by committing willful, repeated, or failure-to-abate violations.
II. Scope.
This Directive applies VOSH-wide.
III. Reference.
CHANGE I: OSHA Instruction CPL 02-00-149 (June 18, 2010); and CHANGE II: Memorandum from Thomas Galassi, Director Directorate of Enforcement Programs (16 August 2012)
IV. Cancellations.
VOSH Program Directive 02-024 (01 April 2011)
V. Background.
The SVEP is intended to focus enforcement efforts on significant hazards and violations by concentrating inspection resources on employers who have demonstrated recalcitrance or indifference to their compliance obligations by committing willful, repeated, or failure-to-abate violations in one or more of the following circumstances: (1) a fatality or catastrophe situation; (2) in industry operations or processes that expose employees to the most severe occupational hazards and those identified as "High-Emphasis Hazards," as defined in Section VIII of this Directive; (3) exposing employees to hazards related to the potential release of a highly hazardous chemical; or (4) all egregious enforcement actions.
Cases meeting the severe violator enforcement criteria are those in which the employer is found to be recalcitrant or indifferent to its compliance, thereby endangering employees. The SVEP procedures in Section XI are intended to increase attention on the correction of hazards found in these workplaces and, where appropriate, in other worksites of the same employer where similar hazards and deficiencies may be present.
This program applies to all employers regardless of size.
VI. Handling Severe Violator Enforcement Cases.
A. Compliance Safety and Health Officers (CSHOs) must become familiar with Appendix B to effectively evaluate employers during all inspections likely to result in a severe violator enforcement case.
B. The VOSH Director will identify severe violator enforcement cases no later than at the time the citations are issued, in accordance with criteria set forth in this Directive.
C. State agency cases that meet the SVEP case criteria will also be classified as severe violator enforcement cases, and where the term "employer-wide" or "company-wide" is used, it will apply agency-wide or department-wide, as appropriate. Appropriate SVEP actions for such cases will be determined by the VOSH Director in consultation with the Division of Legal Support.
D. When a case meets the severe violator enforcement case criteria, the VOSH Director will notify the Directorate of Enforcement Programs (DEP).
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E. VOSH Director notification to DEP must be by e-mail using the SVEP-group e-mail address on OSHA's Global Address list: "zzOSHA-SVEP." The notification must be at least monthly (by the 20th of the month) and include the information requested in Appendix A. The VOSH Director will use the Excel spreadsheet format that will be sent to the SVEP Regional Coordinators shortly after this Directive becomes effective.
VII. Criteria for a Severe Violator Enforcement Case.
An inspection will be classified as a severe violator enforcement case if
it meets one or more of the criteria in paragraphs A. through D., below, at the time that the citations are issued; and
the VOSH Director determines that the willful/repeated/failure-to-abate compliance problems and issues found during the initial inspection are more likely than not in existence at other specific facilities owned and operated by that employer (See Appendix B.)
NOTE: Willful and repeated citations and failure-to-abate notices referenced in A. through D., below, must be based on serious violations, except for recordkeeping, which must be egregious (e.g., per-instance citations).
F. Fatality/Catastrophe Criterion.
A fatality/catastrophe inspection in which VOSH finds one or more willful or failure-to-abate notices based on a serious violation, related to a death of an employee or three or more hospitalizations.
A fatality/catastrophe inspection in which VOSH finds one or more repeat violations based on a serious violation related to a death of an employee or three or more hospitalizations, and the repeat violation is a second or higher number repeat.
NOTE: The violations under this criterion do not have to be High-Emphasis Hazards as defined in Section VIII.
B. Non-Fatality/Catastrophe Criterion Related to High-Emphasis Hazards.
An inspection in which VOSH finds two or more willful or violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a High-Emphasis Hazard as defined in Section VIII.
An inspection in which VOSH finds two or more repeat violations based on high gravity serious violations related to a High-Emphasis Hazard, as defined in Section VIII, and the repeat violation is a second or higher number repeat.
C. Non-Fatality/Catastrophe Criterion for Hazards Due to the Potential Release of a Highly Hazardous Chemical (Process Safety Management).
An inspection in which VOSH finds three or more willful or failure-to-abate notices (or any combination
of these violations/notices), based on high gravity serious violations related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard.
An inspection in which VOSH finds three or more repeat violations based on high gravity serious violations related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard, and the repeat violation is a second or higher number repeat. 2
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D. Egregious Criterion.
All egregious (e.g., per-instance citations) enforcement actions will be considered SVEP cases.
VIII. Definition of High-Emphasis Hazards.
High-Emphasis Hazards as used in this Directive means only high gravity serious violations of the following specific standards covered under falls or the National Emphasis Programs (NEPs) and Local Emphasis Programs (LEP) listed in paragraphs F. through K., below, regardless of the type of inspection being conducted (e.g., complaint, general schedule, construction schedule, Local Emphasis Programs, National Emphasis Programs).
Low and moderate gravity violations will not be considered for a SVEP case.
Example 1: A CSHO conducts a general schedule inspection and cites the employer for one high gravity willful violation of §1910.23 and one low gravity willful violation of §1910.28. The inspection has not met the Non-Fatality/Catastrophe Criterion Related to High-Emphasis Hazards and is not subject to the SVEP.
Example 2: A CSHO conducts a Local Emphasis Program inspection for Residential Construction. While on-site,
the CSHO observes employees working in an unsupported trench and cites the employer for two high gravity willful violations of §1926.651. The VOSH Director determines that trenching compliance problems found during the initial inspection are more likely than not to exist at another worksite operated by the employer. The inspection has met the Non-Fatality/Catastrophe Criterion Related to High-Emphasis Hazards and the case is subject to the SVEP.
E. Fall hazards covered under the following general industry standards
- §1910.23 - Guarding floor and wall openings and holes [Walking-Working Surfaces]
-
§1910.28 - Safety requirements for scaffolding [Walking-Working Surfaces]
-
§1910.29 - Manually propelled mobile ladder stands and scaffolds (towers) [Walking-Working Surfaces]
-
§1910.66 - Powered platforms for building maintenance [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
-
§1910.67 - Vehicle-mounted elevating and rotating work platforms [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
-
§1910.68 - Manlifts [Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms]
B. Fall hazards covered under the following construction industry standards
-
§1926.451 - General requirements [Scaffolds]
-
§1926.452 - Additional requirements applicable to specific types of scaffolds
-
§1926.453 - Aerial lifts [Scaffolds]
-
§1926.501 - Duty to have fall protection
-
§1926.502 - Fall protection systems criteria and practices
- 16 VAC 25-145 - Fall protection [Steel Erection]
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- §1926.1052 - Stairways [Ladders] C. Amputation hazards specified below that are covered under the National Emphasis Program on
Amputations [VOSH Program Directive 14-233A or its successor].
- §1910.147 - The control of hazardous energy (lockout/tagout)
-
§1910.212 - General requirements for all machines
-
§1910.213 - Woodworking machinery requirements
-
§1910.217 - Mechanical power presses
-
§1910.219 - Mechanical power-transmission apparatus D. Combustible dust hazards specified below that are covered by the Combustible Dust National Emphasis Program (Reissued) [VOSH Program Directive 14-236A or its successor], including the General Duty Clause, Va. Code §40.1-51.1(a):
-
§1910.22 - General requirements [Walking-Working Surfaces]
-
§1910.307 - Hazardous (classified) locations [Electrical]
-
Va. Code §40.1-51.1(a) – Any General Duty Clause violation concerning hazards related to dust collectors inside buildings, deflagration isolation systems, and duct-work issues.
E. Crystalline silica hazards specified below that are covered by the National Emphasis Program -Crystalline Silica [VOSH Program Directive 14-410 or its successor]:
- Overexposure. a. §1910.1000 and §1915.1000 - Air Contaminants
b. §1926.55 - Gases, vapors, fumes, dusts, and mists 2. Failure to Implement Engineering Controls.
a. §1910.1000(e) - Air Contaminants
b. §1926.55(b) - Gases, vapors, fumes, dusts, and mists 3. When Overexposure Occurs.
§1910.134; §1926.103; and §1915.154 - Respiratory protection
NOTE: The Silica NEP requires a mandatory follow-up inspection when overexposures to crystalline silica are found. If a follow-up inspection finds the same violations as previously cited, the follow-up inspection will most likely qualify as a SVEP case. See paragraph XI.A.4.
F. Lead hazards specified below that are covered by the National Emphasis Program – Lead (only violations based on sampling) [VOSH Program Directive 14-437A or its successor].
-
§1910.1025 - Lead
-
§1926.62 - Lead
G. Excavation/trenching hazards specified below that are covered by the Special Emphasis Program -Trenching and Excavation [VOSH Program Directive 14-203 or its successor].
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- §1926.651 - Specific excavation requirements
- §1926.652 - Requirements for protective systems [Excavations]
H. Electrocution hazards specified below that are covered by the Local Emphasis Program – Overhead High Voltage Line Safety [VOSH PD 14-221D or its successor].
- Va. Code §59.1-406 to -414, Virginia Overhead High Voltage Line Safety Act
IX. Hazards Due to the Potential Release of a Highly Hazardous Chemical (Process Safety Management).
Petroleum refinery hazards are those hazards that are covered by the Petroleum Refinery Process Safety Management National Emphasis Program and hazards due to the potential release of a highly hazardous chemical as covered by PSM Covered Chemical Facilities National Emphasis Program:
§1910.119 – Process safety management of highly hazardous chemicals
X. Enforcement Considerations – Two or More Inspections of the Same Employer.
For classification under the SVEP, each individual inspection must be evaluated separately to determine if it meets one of the criteria in VII. If any of the inspections meet one of the severe violator criteria, it will be considered a SVEP case and coded according to section XIV.
XI. Procedures of the Severe Violator Enforcement Program (SVEP).
When the VOSH Director determines that a case meets one of the SVEP criteria, it will be treated in accordance with paragraphs XI.A. through E, below. Only those SVEP actions that are appropriate for the particular employer should be taken.
A. Enhanced Follow-up Inspections.
- General.
For any SVEP inspection issued on or after the effective date of this Directive, a follow-up inspection must be conducted after the citations become final orders even if abatement verification of the cited violations has been received. The purpose of the follow-up inspection is to assess not only whether the cited violation(s) were abated, but also whether the employer is committing similar violations at other worksites.
- Compelling Reason Not to Conduct.
If there is a compelling reason not to conduct a follow-up inspection, the reason must be documented in the file. The VOSH Director shall also report these cases monthly to the Director of Enforcement Programs, along with the reason a follow-up was not initiated.
If a follow-up cannot be initiated, the follow-up column of the SVEP Log must be completed by giving the reason. Examples of compelling reasons not to conduct a follow-up inspection may include: (1) worksite/workplace closed, (2) employer is out of business, (3) operation cited has been discontinued at the worksite/workplace, or (4) case no longer meets any of the SVEP
criteria because citation has been withdrawn/vacated.
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NOTE: A Corrected During Inspection (CDI) situation does not take the place of a needed follow-up inspection.
If the Regional Director learns that a cited SVEP worksite has been moved from the cited location to a different location, the new location shall be inspected. If the new location is outside the Regional Office’s jurisdiction, a referral shall be made.
- Construction Worksites.
When the Regional Office has reason to believe that a construction worksite is no longer active (or is nearing completion), thus making a follow-up inspection of the same worksite impossible or impractical, the provisions in paragraph XI.B.6. shall apply. When a construction follow-up is attempted but the employer is no longer at the site, it will not be added to the SVEP Log.
- Silica Overexposure Follow-ups.
The Silica NEP [VOSH PD 14-410 or its successor] requires a mandatory follow-up inspection when citations are issued for overexposure to crystalline silica to determine whether the
employer is eliminating silica exposures or reducing exposures below the PEL. If a follow-up inspection finds the same or similar violations as previously cited, the follow-up inspection will most likely qualify as a severe violator enforcement case under the criteria in section VII.
B. Statewide Inspections of Related Workplaces/Worksites.
- General.
OSHA and VOSH have found that employer indifference to compliance responsibilities under the Act may be indicative of broader patterns of non-compliance at related employer worksites.
When there are reasonable grounds to believe that compliance problems identified in the initial inspection are more likely than not indicative of a broader pattern of non-compliance, OSHA and VOSH will inspect related worksites of the same employer. Appendix B of this Directive provides guidance in evaluating whether compliance problems found during the initial SVEP inspection are localized or likely to exist at related facilities. This information shall be gathered, to the extent possible, during the initial SVEP inspection. Such information may also be sought by letter, telephone, or provisions contained in Va. Code §40.1-6(4), take and preserve testimony, examine witnesses, administer oaths, interrogatories.
The VOSH Director shall be responsible for assuring that relevant information is gathered and for determining whether the information provides specific grounds to believe that a broader pattern of non-compliance may exist. In Virginia, an SVEP referral must be supported by specific probable cause to believe that there is a “condition, object, activity or circumstance which legally justifies” an inspection. Va. Code §40.1-49.9. To support a statewide or nationwide SVEP referral, there must be reliable information and evidence that the hazards/violations addressed in the willful, repeated or failure-to-abate violations referenced in paragraph VII.A. to D. are more likely than not present at any specific related facility owned by the employer for which an inspection is planned.
The VOSH Director shall consult with the Division of Legal Support (DLS) as appropriate. When
sufficient evidence is found for a specific related establishment of the employer that is in the same 3-digit NAICS code (or 2-digit SIC code) as the initial SVEP case will be identified; the establishment will be selected for inspection in accordance with subsection 4 below. 6
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Establishments that are not in the same 3-digit NAICS code (or 2-digit SIC code) also may be inspected if there are reasonable grounds to believe hazards and violations, directly related to the willful/repeated/FTA violations from the initial inspection are more likely than not to be present at the specific related sites.
When a nationwide referral is received from federal OSHA, the VOSH Director will assign it to the appropriate region for inspection if:
it meets one or more of the criteria in paragraphs VII.A. through D. at the time that the citations were issued; and
the willful/repeated/failure-to-abate compliance problems and issues found during the initial inspection are more likely than not in existence at the specific facility/worksite that is the subject of the referral (see Appendix B).
If the nationwide referral is found to not meet the above criteria, the VOSH Director, after consultation with DLS, as needed, shall contact the referring Regional Administrator and request they provide any additional information from the initial inspection that could be used to support a finding of specific probable cause to inspect.
If sufficient additional information is provided, the VOSH Director will assign the referral to the appropriate region. If sufficient information is not available, the VOSH Director shall inform DEP that the referral inspection cannot be assigned based on current available information.
The Directorate of Enforcement programs will serve as the National Office point of contact for all SVEP nationwide referrals. Any questions should be addressed to the Director or Deputy Director in DEP. The VOSH Director is Virginia’s SVEP Coordinator.
- Office of Statistical Analysis (OSA).
For federal SVEP sites only. At the request of the OSHA Director of the Directorate of Enforcement Programs, the Regional Administrator, or the Regional Coordinator, OSA will assist in identifying similar and other related worksites nationwide (including in State Plan States) of the same employer.
Establishments are related when there is common ownership. Related establishments include establishments of corporations that are in the same corporate family, including subsidiary, affiliate, or parent corporations with substantial common ownership. Similar related establishments are related establishments that are in the same 3-digit NAICS code (or 2-digit SIC code).
- State Plan State Referrals.
OSHA will accept referrals, which include all relevant facts, from other State Plan States and federal OSHA regarding any inspections conducted pursuant to the State's SVEP. State Plan referrals to Federal OSHA are to be sent to the Regional Administrator, who will forward any referrals not in its Region to the appropriate OSHA Regional Administrator.
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- General Industry Workplaces.
a. When the VOSH Director determines that additional workplaces in Virginia should be inspected, all such workplaces will be inspected to determine whether those sites have hazardous conditions or violations similar to those in the severe violator enforcement case. The VOSH Director shall have overall responsibility for coordinating the inspections and planning investigative strategy. The VOSH Director shall consult with DLS, as appropriate.
b. In addition to or in lieu of (a) above, when the Director has reasonable grounds to believe that hazards may exist at particular other related establishments, he/she may select those establishments for inspection.
c. The VOSH Director shall be responsible for coordinating statewide inspections of related establishments under this paragraph.
- SVEP Nationwide Related Inspections that involve process safety management (PSM) hazards.
A SVEP statewide inspection will be limited to investigations of the PSM standard for which the willful or repeated citations or failure-to-abate notices were issued, and will not include units that were inspected in the previous two years.
- Construction Worksites.
a. Whenever an employer in the construction industry has a SVEP case, the VOSH Director should further investigate the employer’s compliance record. If the initially inspected worksite is closed before a follow-up inspection can be conducted, at least, one other worksite of the cited employer should be inspected to determine whether the employer is committing violations similar to those found in the initial severe violator enforcement inspection. Because the worksites of construction employers are often difficult to locate, the following means may be used to identify other worksites of the cited employer.
If the severe violator enforcement case is resolved through a settlement, the agreement should require the employer to notify the Regional Director of its other jobsites prior to when work starts at new construction sites during the following one-year period.
Interrogatories pursuant to Va. Code 40.1-6(4) may be issued to an employer prior to the issuance of the citation to identify the location of worksites where employees of that employer are presently working or are expected to be working within the next 12 months.
Interrogatories may be issued at any time during an inspection if it appears that
the inspection is likely to result in a SVEP case and the Regional Director determines (after consultation with the VOSH Director) that the hazards disclosed by the inspection and the inadequacy of the employer's response to those hazards indicate that a broader response by VOSH is appropriate.
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Whenever interrogatories are to be issued pursuant to the SVEP, the VOSH Director shall coordinate with DLS.
b. VOSH Headquarters.
When a Regional Director determines that a SVEP construction employer is operating in a different region in Virginia, the Regional Director will send a recommendation for inspection, including all relevant facts, to the VOSH Director. The VOSH Director shall consult with DLS, as appropriate.
When the VOSH Director deems it necessary to notify Regional Directors regarding activity of a particular construction employer with worksites in more than one Region in Virginia, the VOSH Director will issue a SVEP statewide referral. The procedures outlined under XI.B.6. will be followed.
Any inspection conducted under a SVEP statewide referral is to be coded as an unprogrammed-referral, and is to be considered a referral from the federal OSHA or VOSH Headquarters. An OSHA-90 is to be generated when a site is discovered where a SVEP nationwide/statewide Referral employer is operating.
- Scope of Related Inspections.
The scope of inspection of a related establishment will depend upon the evidence gathered in the original SVEP inspection, and will mainly focus on the same or similar hazards to those found in the original case.
- Priority of the Inspection.
In accordance with inspection priorities of the FOM, the SVEP nationwide and statewide referral inspections will come after imminent danger, fatality, and complaints, but before other programmed inspections. But see section XIII. (Relationship to Other Programs) of this Directive, regarding when other inspections may be conducted concurrently.
C. Increased Company Awareness of VOSH Enforcement.
- Sending Citations and Notifications of Penalty to Employer’s Headquarters.
a. For all employers that are the subject of a SVEP case, the Regional Director shall mail a copy of the Citations and Notifications of Penalty to the employer's national headquarters if the employer has more than one fixed establishment. See sample cover letter in Appendix C.
b. Employee representatives (e.g., unions) shall receive a copy of the Citations and Notifications of Penalty that is mailed to the employer's national headquarters.
- Sending Letters to Corporate Officers or Coordinating Meetings with the Regional or Central Office.
In cases where VOSH determines that an establishment's safety and health problems should be addressed at the corporate level, the following actions should be considered:
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a. A letter sent from the VOSH Director to the company President expressing VOSH's concern with the company's violations. A copy of the citations shall be sent with the letter if the citations and cover letter have not been sent to the company President previously.
b. A meeting may be held between VOSH, company officials, employees and unions representing affected employees to discuss how the company intends to address safety and health compliance.
c. Employee representatives shall be notified by letter when VOSH determines that the establishment's safety and health problems need to be addressed at the corporate level.
D. Enhanced Settlement Provisions.
The following settlement provisions shall be considered to ensure future compliance both at the cited facility and at other related facilities of the employer:
- Employers shall hire a qualified safety and health consultant or contract with a qualified
consultant to develop and implement an effective and comprehensive safety and health program or, where appropriate, a program to ensure full compliance with the subpart under which the employer was cited under the SVEP;
NOTE: Employers cannot be required in a settlement agreement to use VOSH consultation services; but the employer can be provided the option of excusing part of the penalty owed if they request VOSH consultation services.
-
Applying the agreement company-wide. Company-wide settlement agreements are to be coordinated with the VOSH Director and DLS.
-
Requiring interim abatement controls if VOSH is convinced that final abatement cannot be accomplished in a short period of time;
-
In construction (and, where appropriate, in general industry), using settlement agreements to obtain from the employer a list of its current jobsites, or future jobsites within a specified time period. The employer should be required to indicate to VOSH the specific protective measure to be used for each current or future jobsite;
-
Requiring the employer for a specified time period to submit to the Regional Director its Log of Work-related Injuries and Illnesses on a quarterly basis, and to consent to VOSH conducting an inspection based on the information; and
-
Requiring the employer for a specified time period to notify the Regional Director of any serious injury or illness requiring medical attention and to consent to an inspection.
E. Petitioning Court to Enjoin Violations of VOSH Standards, Rules and Regulations
The VOSH Director may consult with DLS to determine if the Commissioner should petition the court to enjoin violations of VOSH standards, rules and regulations in accordance with Va. Code §40.1-49.4.F.2.
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XII. SVEP Log.
A. General.
The VOSH Director will maintain a SVEP Log in which inspections that meet the SVEP criteria, or are SVEP-related inspections (i.e., SVEP follow-ups, or inspections at other worksites of the same employer), are logged as they are reported to the National Office.
B. Lining-Out Establishments from the SVEP Log.
If an establishment has entered into a settlement agreement (informal or formal) in which a citation that qualified the establishment for SVEP designation is deleted, or if there has been a court decision that has vacated such a citation, then the entry on the SVEP Log will be lined-out and the IMIS "SVEP" code will be removed from that establishment's Internet Inspection Detail summary. The Regional Director must notify the VOSH Director of these changes, who in turn must notify federal OSHA’s Department of Enforcement Programs (DEP) to line-out the inspection from the SVEP Log.
XIII. Relationship to Other Programs.
C. Unprogrammed Inspections.
If an unprogrammed inspection arises with respect to an establishment that is to receive an SVEP-related inspection, the two inspections may be conducted either separately or concurrently. This Directive does not affect, in any way, VOSH's ability to conduct unprogrammed inspections.
B. Programmed Inspections.
Some establishments selected for inspection under the SVEP may also fall under one or more other VOSH initiatives such as general schedule or Local Emphasis Programs (LEP). Inspections under these programs may be conducted either separately or concurrently with inspections under this Directive.
XIV. Recording and Tracking Inspections.
C. SVEP Code.
This applies to all severe violator enforcement cases opened on or after the effective date of this Directive. Once a case is identified as a severe violator enforcement case, enter the NEP code "SVEP" from the drop-down list in field 25d for the inspection.
NOTE: Only inspections that meet one of the four criteria for a severe violator enforcement case will be coded with the SVEP NEP code.
B. NEP Codes for High-Emphasis Hazards.
If the SVEP criterion used is that described in paragraph VIII.B., the appropriate NEP/LEP codes must be entered in field 25d.
C. Significant Enforcement Actions and Enhanced Settlement Codes.
If any inspection in a significant enforcement action qualifies as a severe violator case, it is to be coded "SIGCASE" in item 42, for that inspection. 11
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EXAMPLE: N 08 SIGCASE
If a severe violator case receives an enhanced settlement agreement, it is to be coded "ENHSA" in item 42.
EXAMPLE: N 08 ENHSA
D. Other Program Codes.
Remember to enter all applicable NEP and LEP program codes in Item(s) 25c and 25d when an inspection is conducted and the inspection also meets the protocol for other program(s). Also, enter all applicable Strategic Management Plan hazard/industry codes in Item 25f.
XV. Dun & Bradstreet Number.
If it is available, the Data Universal Numbering System (DUNS) number is to be entered in the appropriate field on the Establishment Detail Screen. In establishments where ownership has changed, enter the DUNS number
for the new owner. If the new owner does not have a new DUNS number, enter the old DUNS number, if known. Since the DUNS number is site-sensitive, the old number will give some useful data. The field on the Establishment Detail Screen can be accessed by pressing F5 in Item 8 to access establishment processing. Once establishment processing is completed, the DUNS number will appear in Item 9b.
XVI. End of the Fiscal Year Report.
The Directorate of Enforcement Programs (DEP) will compile an End of the Fiscal Year Report of each Region's SVEP activity, which will be sent to the Assistant Secretary.
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Appendix A
Information Needed on Each SVEP Inspection for Monthly Report to the National Office
Employer Name Inspection Number Regional Office Field Office Opening Date SIC & NAICS codes # of Employees Controlled
Indicate if inspection is a SVEP, a Follow-up (FU), a Construction-Related (C-R), or a General Industry-Related (GI-R). If inspection is done based on an SVEP Nationwide Expansion Memo the inspection will either be a C-R or a GI-R.
If the inspection is other than a SVEP, give the name and inspection number of the SVEP case to which it is a follow-up or related. Remember: any FU, C-R, or GI-R inspections can also be a SVEP.
Indicate if construction or non-construction.
What SVEP criteria apply (more than one can apply)
-
Fatality/Catastrophe -- One/more W/2nd or 3rd R/FTA based on a serious violation of any gravity related to death or three or more hospitalized
-
Non-Fatality/Catastrophe -- One/more W/2nd or 3rd R/FTA based on high gravity serious violations related to a High-Emphasis Hazard (excluding Process Safety Management)
-
Non-Fatality/Catastrophe for PSM hazards -- One/more W/2nd or 3rd R/FTA based on high gravity serious violations
-
Egregious Case
What SVEP actions have been taken (do not report any planned activities)
-
Follow-up inspection conducted; or compelling reason not to conduct
-
Additional construction worksite inspected
-
Additional general industry worksite inspected
-
Letter and citation sent to company headquarters by VOSH Director
-
Meeting with company officials (separate from informal conference)
-
Enhanced settlement provisions used in informal/formal settlements
A-1
[TABLE 17-1] Employer Name | Inspection Number | Regional Office | Field Office Opening Date | SIC & NAICS codes | # of Employees Controlled |
[/TABLE]
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Appendix B
CSHO Guidance: Considerations in Determining Company Structure and Safety and Health Organization
When determining whether to inspect other worksites of a company that has been designated a severe violator enforcement case, it must first be determined whether compliance problems and issues found during the initial SVEP inspection are localized or are likely to exist at other, similar facilities owned and operated by that employer. In Virginia, an SVEP referral must be supported by specific probable cause to believe that there is a “condition, object, activity or circumstance which legally justifies” an inspection. Va. Code §40.1-49.9. If violations at a local workplace appear to be symptomatic of a broader company neglect for employee safety and health, with respect to conditions cited under the SVEP inspection, the company structure should be investigated to help identify other establishments and conditions similar to those found in the initial inspection.
To support a statewide or nationwide SVEP referral CSHOs must gather reliable information and evidence that the hazards/violations addressed in the willful, repeated or failure-to-abate violations referenced in paragraph VII.A. to D. are more likely than not present at any related facility owned by the employer for which an inspection is planned.
Extent of Compliance Problems. Are violative conditions a result of a company decision or interpretation concerning a standard, regulation or hazardous condition? Have corporate safety personnel addressed the standard or condition? Ask the following types of questions of the plant manager, safety and health personnel and line employees.
Who made the decision concerning the violative operation, local management or company headquarters? Was the decision meant to apply to other facilities of the employer as well? If the decision was from company headquarters, what is their explanation?
Is there a written company-wide safety program? If so, does it address this issue? If so, how is the issue addressed?
Is there a company-wide safety department? If so, who are they and where are they located? How does company headquarters communicate with facilities/worksites? Are establishment/worksite management and safety and health personnel trained by the company?
Do personnel from company headquarters visit facilities/worksites? Are visits on a regular or irregular basis?
What subjects are covered during visits? Are there audits of safety and health conditions? Were the types of violative conditions being cited willful, repeated or failure-to-abate discussed during corporate visits?
Are there insurance company or contractor safety and health audit reports that have been ignored? Are headquarters safety and health personnel aware of the reports and the inaction?
Does the company have facilities or worksites other than the one being inspected that do similar or substantially similar work, use similar processes or equipment, or produce like products? If so, where are they? Is there any information or evidence to suggest that the types of violative conditions being cited willful, repeated or failure-to-abate exist at the other company facilities/worksites?
B-1
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What is the overall company attitude concerning safety and health? Does the establishment or worksite receive good support from company headquarters on safety and health matters?
Does the company provide appropriate safety and health training to its employees?
Ask whether the establishment's/worksite's overall condition is better or worse at present compared to past years? If it is worse, ask why? Has new management or ownership stressed production over safety and health?
Is the equipment outdated or in very poor condition? Does management allege that stressed financial conditions keep it from addressing safety and health issues?
Is there an active and adequately funded maintenance department? Have they identified these problems and
tried to fix them?
Has the management person being interviewed worked at or visited other similar facilities or worksites owned by the company? How was this issue being treated there? Is there any information or evidence to suggest that the types of violative conditions being cited willful, repeated or failure-to-abate exist at the other company facilities/worksites?
Identifying Company Structure. Inquire where other facilities or worksites are located and how they may be linked to the one being inspected? Sometimes establishment/worksite management will not have a clear understanding of the company structure, just an awareness of facts concerning control and influence from the corporate office.
Is the establishment/worksite, or the company that owns the establishment or uses the worksite, owned by another legal entity (parent company)? If so, what is the name and location? Try to find out whether the inspected establishment/worksite is a "division" or a "subsidiary" of the parent company. (NOTE: A "division" is a wholly-owned part of the same company that may be differently named, e.g., Chevrolet is a division of GM. A "subsidiary" is a company controlled or owned by another company which owns all or a majority of its shares.
Try to determine if the parent company has divisions or subsidiaries other than the one that owns or uses the establishment or worksite being inspected. If so, try to get the names and the type of business they are involved in. Sometimes this type of information can be found on a website or in Dun and Bradstreet. Another good source of information is the office of the Secretary of State within the state government.
Are there other facilities or worksites controlled by these entities that do the same type of work and might have the same kinds of safety and health concerns? Is there any information or evidence to suggest that the types of violative conditions being cited willful, repeated or failure-to-abate exist at the other company facilities/worksites?
Are the company entities publicly held (have publicly traded shares) or are they closely held (owned by one or more individuals)?
What are the names, positions and business addresses of relevant company person
On what kind of safety and health-related issues or subjects do personnel from company headquarters give instructions?
Are there other companies owned by the same or related persons that do similar work (especially in construction).
B-2
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Appendix C
Sample Letter to Company Headquarters
Area Office Header
Date
Name of Employer's National Headquarters
Address of Headquarters
Dear _____
Enclosed you will find a copy of a Citation and Notification of Penalties for violations of Virginia Occupational Safety and Health (VOSH) laws, standards and regulations, which were issued to [establishment name, located in city, state]. This case has been identified as a severe violator enforcement case under the VOSH Severe Violator Enforcement Program
(SVEP).
The violations referred to in this citation must be abated by the dates listed and the penalties paid, unless they are contested. This Citation and Notification of Penalties is being provided to you for informational purposes so that you are aware of the violations; the original was mailed to [establishment name] on [date]. We encourage you to work with all of your sites to ensure that these violations are corrected. VOSH is dedicated to saving lives, preventing injuries and illnesses and protecting Virginia’s employees and employers from occupational hazards. For more information about VOSH programs, please visit our website at www.doli.virginia.gov.
Sincerely,
VOSH Director
Enclosure
C-1
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CHANGE II
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CHANGE II
Scaffolding Securing Standards InterpretationDoc ID: 06-104
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VOSH PROGRAM DIRECTIVE: 06-104 Issued: August 18, 1988 Renumbered: August15, 2005
SUBJECT: Standard Interpretation of 1926.451(d)(7), Securing Scaffolding to a Building or Structure
A. Purpose.
This revised directive updates outdated references and renumbers this standard interpretation to conform to the revised VOSH program directives’ classification and numbering system (See VOSH Program Directive 01-001A).
This directive transmits to field personnel an interpretation received from Federal OSHA concerning the requirements for securing scaffolding to a building or structure “at
intervals not to exceed 30 feet horizontally and 26 feet vertically,” contained in 1926.451(d)(7).
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies VOSH-wide and specifically to Occupational Safety Compliance and Cooperative Programs personnel.
C. Action.
Directors and Managers shall ensure that VOSH field personnel understand the interpretive guidance for §1926.451 (d)(7) provided by federal OSHA.
D. Cancellation.
VOSH Program Directive 12-014 (August 18, 1988).
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E. Background.
See attached letter dated September 8, 1987, requesting an official standards interpretation of §1926.451(d)(7). This interpretation was supplied to VOSH Regional Supervisors by letter dated October 7, 1987. This directive officially adopts the interpretation.
C. Ray Davenport Commissioner
ATTACHMENTS
Federal OSHA Interpretation of §1926.451(d)(7), received by VOSH on October 5, 1987.
VOSH Follow-up Request for Interpretation of §1926.451(d)(7) Dated September 8, 1987.
DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner -- Programs Directors and Managers VOSH Compliance Staff Cooperative Programs Staff Legal Support Staff
OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
2
Virginia Anti-Retaliation Laws and ProtectionsDoc ID: Virginia
--- Page 1 ---
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER ELEVEN ANTI-RETALIATION
Effective 7/20
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual.
Section 1.00 Coverage
Virginia’s Anti-Retaliation Laws for misclassification and payment of wage claims are located in §§ 40.1-33.1 and 33.2 of the Code of Virginia respectively. The laws apply to all private industry employers operating a business in the Commonwealth. Public sector employees are not
covered by the Anti-Retaliation Laws (see § 40.1-2.1 of the Code of Virginia), nor do they apply to work performed on Federal properties or enclaves.
A. Retaliation for Payment of Wage Claims
-
A complaint with the Virginia Department of Labor and Industry Division of Labor and Employment Law (the “Division”) or lawsuit must have been filed against the employer by the claimant.
-
The claimant must have been terminated or otherwise discriminated against as a result of that complaint.
-
Claims where no official action against the employer has been commenced, either through the courts or through the Division, are not covered by the statute.
B. Retaliation for Misclassification Claims
1. The claimant must have
a. reported (or planned to report to an apparent authority) that an employer had failed to classify them as an employee, or
b. been requested or subpoenaed to participate in an investigation or hearing on such an issue.
- In contrast to payment of wage retaliation, claims where no official action or complaint has been commenced are covered by the statute, and therefore will be investigated.
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Section 2.00 Accepting Retaliation Complaints for Work Performed in Virginia
A. Retaliation complaints will be accepted and investigated in situations where the following has occurred:
-
An out-of-state employer hired a Virginia resident to perform work in Virginia.
-
An in-state employer hired an out-of-state resident to perform work in Virginia.
-
An out-of-state employer hired an out-of-state employee to perform work in Virginia.
-
An in-state employer hired an in-state employee to perform work in Virginia.
B. Retaliation complaints will generally not be investigated in situations where the following has occurred:
-
An in-state employer hired a Virginia resident to perform work out of state.
-
An out-of-state employer hired a Virginia resident to perform work out of state.
Note: An exception to this general rule would exist in situations where an employee performed work for a single employer in more than one state. If employment agreement was entered into in the state of Virginia for all work performed, the total employment situation would be covered by Virginia law. For example, if an accounting firm hired an auditor whose job requires the employee to travel and perform tasks in multiple states including Virginia and the agreement was entered into in Virginia, the Division would investigate the claim.
C. Claims Intake Processing
The Labor and Employment Law Anti-Retaliation Unit receives all claims filed with the Division. Claims will be reviewed for completeness and jurisdiction. Claims whose conduct occurred before the anti-retaliation statutes went into effect (July 1, 2020) or more than two years prior to the date of the complaint shall not be investigated. Complex claims requiring additional review will be reviewed by Senior Staff for acceptance or denial of the claim. If for any reason a
claim cannot be pursued by the Division, claimants will be notified of the reason. Claims accepted for investigation will be entered and assigned to Compliance Officers in the Labor Law Claim Tracking System.
Section 3.00 Retaliation Procedure Labor Law Compliance Officer shall investigate complaints alleging violations of §§ 40.1-33.1
- 1-33.2 in accordance with the procedures established in this manual. In obtaining initial information from the employer, the Compliance Officer shall attempt to ascertain the legal entity involved and the number of employees working at the time of the investigation. This information is necessary in order to calculate the reductions for size of the business for the Civil Monetary Penalty (“CMP”) Report.
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Compliance Officers, Leads, and Supervisors shall conduct investigations in the manner that will most effectively result in relevant information, including by telephone, e-mail, fax, and in-person investigations. Any travel must be approved by a supervisor before being undertaken.
A. Employer Notification of Retaliation Claim Received
Upon assignment of a retaliation claim for investigation, the Compliance Officer shall attempt to interview the claimant. The interview will clarify, verify, and expand any statement of facts provided on the anti-retaliation claim form. If the claimant’s complaint and statement contain all the requisite elements of an anti-retaliation claim, the Compliance officer shall notify by employer of the formal retaliation investigation by letter sent by US mail. The letter shall include all available details as well as the statutory authority for the investigation (Sections 40.1-33.1 and/or 33.2 of the Code of Virginia). The Compliance Officer will request information concerning the
facts of the claim as presented by the claimant.
B. Investigation Procedure
-
After reviewing the information received from the Employer, the Supervisor will determine if further investigation is needed. This may require in-person interviews.
-
If the Supervisor authorizes interviews with witnesses, the Compliance Officer shall notify the employer of the date in which the Compliance Officer shall appear to conduct field interviews.
-
The Compliance Officer shall identify all witnesses to be interviewed, and attempt to interview them on that date.
-
All interviews shall occur in a private, neutral location, such as a conference room. If that is not possible, interviews may be conducted at the nearest Department field office.
-
The identities of all witnesses shall be confirmed with a photo ID. Any statements taken shall be presented to the witness to have them confirm the accuracy of those statements.
C. Notification of the Determination
-
Before making a determination as to whether the anti-retaliation laws in Va Code §§ 33.1 or 33.2 were violated, the Compliance Officer shall request guidance from a Supervisor.
-
If the Compliance Officer, after being advised by a Supervisor, determines that the claim is clearly not valid, he or she shall notify all parties in writing by certified mail with appropriate documentation to the case tracking log.
-
If the Compliance Officer determines the claim is valid and that the Code of Virginia has been violated, the Compliance Officer will present the case file to the Labor Law Attorney.
3
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The Labor Law Attorney will inform the employer in writing that their investigation has found a violation of the Code of Virginia.
- Before preparing this letter, the Officer shall complete the CMP Calculation Report if necessary.
D. Settlement Negotiations
-
The Labor Law Attorney will endeavor, on behalf of the claimant, to settle valid claims.
-
The Department may negotiate a settlement with the employer to avoid litigation if desired by the claimant.
-
Employers shall be instructed to whom checks are payable, and where they are to be sent.
-
Should no settlement that is acceptable to the claimant and in compliance with the damages and penalties prescribed by the Code of Virginia be possible, the Labor Law Attorney will file suit in a court of competent jurisdiction, seeking to recover all damages and penalties under the appropriate statute, including reinstatement.
E. Closure of Case After the case comes to a conclusion, either by determining that the claim is not valid,
settlement, or a verdict from a court of competent jurisdiction, the Compliance Officer will close the case file.
F. Interest Calculation
1. Interest may be calculated using the following method
(1) Multiply the Wages Due by .06 (6%). The figure that results is the Yearly Payment Interest. (2) Divide the Yearly Interest by 365 (number of days in a year). This figure equals the
Daily Interest amount. (3) Multiply the Daily Interest amount by the number of days the wages are overdue.
(4) The result is the Total Interest Due the claimant.
- If wages need to be collected over more than one pay period, the correct amount of interest due must be determined by repeating the interest calculation for each affected pay period.
Once the Representative has completed a series of individual interest calculations, the separate interest due amounts must be added together to arrive at the total interest due the claimant.
4
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- All Final Orders must specify that interest shall accrue at six (6) percent from the date the wages were legally owed to the complainant.
K. Attendance by Compliance Officers at Court Hearings: Subpoenas
-
In cases prosecuted by a Commonwealth’s Attorney, the Attorney General, or other attorney engaged by the Commonwealth, a Compliance Officer shall appear at trial on request of the attorney whether or not a subpoena has been issued.
-
No Compliance Officer shall appear at any other court hearing or trial unless he or she has received a subpoena from the court compelling attendance. For example, if a Compliance Officer is requested to appear at a private civil proceeding related to conduct investigated by the Compliance Officer, the Department will require a subpoena for the Compliance
Officer to attend.
5
Virginia Scaffolding Safety Emphasis ProgramDoc ID: Local
--- Page 1 ---
DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-204A ISSUED: 01 September 2018
SUBJECT: State Emphasis Program: Scaffolding
Purpose CHANGE II: This Change updates the reference to the coding system from Integrated Management Information System (“IMIS”) to the current OSHA Information System (“OIS”). CHANGE I: This revised directive updates old references and renumbers this SEP to conform to the VOSH program directives’ new classification and numbering system (See VOSH Directive 01-001A).
This directive continues the state emphasis program (SEP) for scaffolding.
This program directive is an internal guideline not a statutory or regulatory rule and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the
program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Program Directive applies VOSH-wide.
Reference None.
Cancellation VOSH Program Directive 14-204 (01 April 2003)
Action Directors and Managers shall assure that the policies and procedures established in this directive are adhered to in conducting inspections.
Effective Date CHANGE II: 01 September 2018 CHANGE I: 01 April 2003
Expiration Date Not Applicable – remains in effect until cancelled or superseded.
C. Ray Davenport Commissioner
1
[TABLE 1-1] DOLI | DOLI | Virginia Occupational Safety & Health | VOSH
[/TABLE]
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Distribution: Commissioner of Labor and Industry Consultation Services Director Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH DLS and OIS Staffs
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I. Background and Summary.
Scaffolding work presents a huge safety risk for workers. Employers may frequently choose to bypass compliance with VOSH safety standards for three reasons: (1) economic constraints, (2) a belief that compliance is unnecessary, and (3) an expectation that these short-term operations will go undetected.
More than thirty five years of enforcement activity has shown that the rate of compliance needs to be increased.
Because of the continuing incidence of scaffolding-related falls, and ensuing injury or loss of life, VOSH has determined that an increased enforcement presence is warranted.
The normal Construction Scheduling Procedures, outlined in the VOSH FOM, are not effective in conducting scaffolding inspections because the timing of such inspections is extremely important.
Therefore, the following procedures are to be used where scaffolding is concerned.
II. Procedures.
- All compliance personnel shall be instructed to be on the lookout for activities in which scaffolding may be in use. Every observation of these activities shall be handled as follows:
(A) Note the name and address (or location) of worksite;
(B) Note name of contractor performing scaffolding operation;
(C) Note condition of worksite, including apparent serious hazards;
(D) Note if violations or unsafe conditions are observed in plain view.
-
Although sightings will be those that occur during routine travel, CSHOs may saturate areas of high construction activity in order to identify scaffolding sites. (Verification of information received from sources outside these observations is permitted under SEP.)
-
Documentation of events leading up to observation is to be maintained by the Regional Office in case of denial of entry.
-
Inspection
(A) If violations or unsafe conditions are observed in plain view, all scaffolding brought to the attention of VOSH shall be inspected.
(B) No inspection shall be conducted if it is apparent that the scaffolding is in compliance with VOSH standards. When no inspection is conducted, the CSHO shall record this for the purposes of the OIS system, according to the guidelines in section III.C., below.
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(C) In the case of imminent danger, unprogrammed SEP inspections (as per relevant chapters of VOSH FOM) are scheduled when formal complaints, FAT/CAT reports, safety and health agency reports, media reports and other reports of imminent danger, or other referrals are made.
(D) Unprogrammed SEP inspections shall be scheduled in accordance with the guidelines in Chapter 3 of the 2017 VOSH FOM. Such notices need not be responded to with the usual letter to the employer.
(E) The scope of inspections under this SEP is limited to scaffolding, unless it must be expanded. In such a case, Chapter 5, B. in the 2017 VOSH FOM shall be followed.
Please Note: The CSHO shall be alert to the presence of minors who may be employed at such worksites. Minors between 16 and 18 years of age shall be reported to the Regional Director, as they should not be working in hazardous occupations.
III. Recording in OIS.
The following guidelines shall be applied when recording inspections conducted under this SEP, or any others involving scaffolding operations:
A. Programmed Inspections. A programmed inspection conducted under this SEP shall be coded as “SCAFFOLD” IN THE State Emphasis Program block and as “Programmed Planned” in the Initiating Type block OIS. Inspections under this SEP will be typically coded as “Safety” inspections in the “Inspection Category” block.
B. Complaint Inspections. On the OIS Inspection Form, inspections involving scaffolding activities which are initiated as a result of a complaint, referral, or fatality/catastrophe, shall be coded as “SCAFFOLD” in the State Emphasis Program block and as the appropriate “unprogrammed activity in the Initiating Type block regardless of whether they are listed on a cycle list.
C. No Inspection Conducted. When no inspection of scaffolds is conducted for any of the reasons listed in sections II.1. through II.5 of VOSH Program Directive 14-221E, or its successor, OIS shall be updated in the “Reason No Inspection” block.
D. Code placement of “SCAFFOLD” is necessary in the State Emphasis Program field for all consultation activities, i.e., requests, visits, and compliance assistance conducted at establishments in the NAICS codes included in this SEP.
Please note: If you have any questions regarding the proper way to record in OIS, please contact the VOSH OIS section.
Attachment: None.
4
Lead Exposure Reduction ProgramDoc ID: National
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DOLI Virginia Occupational Safety & Health VOSH
VOSH PROGRAM DIRECTIVE: 14-437B ISSUED: 15 December 2014
SUBJECT: National Emphasis Program: Lead
Purpose CHANGE I: This Directive transmits to field personnel policies and procedures for implementing a National Emphasis Program to reduce Occupational Exposure to Lead.
CHANGE II: This Change updates old references and renumbers this NEP to conform to the new VOSH program directives’ classification and numbering system (see VOSH Program Directive 01-001A).
CHANGE III: Appendix A of this directive includes a list of industries to assist VOSH field offices in determining industries where elevated blood lead levels indicate a need for increased focus in evaluation of airborne lead exposures.
CHANGE IV: This Change includes instructions to consider targeting additional establishments that have been cited for lead overexposures, such as industries that specialize in de-leading services to firing ranges or to electronics recycling businesses.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the
Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This directive applies VOSH-wide.
Reference OSHA Instruction CPL 03-00-009 (August 14, 2008); Memorandum from Doug Kalinowski, Directorate of Cooperative and State Programs (November 27, 2013); and Memorandum from Thomas Galassi, Directorate of Enforcement Programs (November 25, 2013).
Cancellation CHANGE I: VOSH Program Directive 02-437 (February 1, 2002);
CHANGE II: VOSH Program Directive 14-437 (April 1, 2003); and CHANGE III: VOSH Program Directive 14-437A (February 15, 2009)
Expiration Date Not Applicable.
Effective Date 15 December 2014
C. Ray Davenport Commissioner
1
[TABLE 1-1]
| | OLI Virginia Occupational Safety & Health VOSH | | | |
DOLI | | | | VOSH | |
| DOLI | OLI | | | VOSH |
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Action Directors and Managers shall ensure that policies and procedures established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
Distribution: Commissioner of Labor and Industry Cooperative Programs Director and Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & Norfolk Area Offices Legal Support & IMIS Support Staffs
Attachments: ● OSHA Instruction CPL 03-00-009, National Emphasis Program: Lead (August 14, 2008);
● Memorandum from Doug Kalinowski - Directorate of Cooperative and State Programs - OSHA (11/27/13); and
● Memorandum from Thomas Galassi, Directorate of Enforcement Programs - OSHA (11/25/13)
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
OSHA VOSH
Federal Agency State Agency
Assistant Secretary Commissioner of Labor and Industry
Regional Administrator Assistant Commissioner
Area Director Regional Director VOSH Program Director
Area Office/Regional Office Regional Office
Regional Solicitor Attorney General or VOSH
Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
Agency Department
OSHA Directives: VOSH Program Directives
OSHA Field Operations Manual (FOM) VOSH Field Operations Manual (FOM);
OSHA Instruction TED 01-00-015 VOSH PD 02-052A, OSHA Technical OSHA Technical Manual (01/20/99) Manual (03/15/99) (currently 09-052A (08/01/12)
OSHA Instruction CPL 02-02-058, 29 CFR VOSH PD 02-407, Lead Exposure in 1926.62, Lead Exposure in Construction; Construction: Interim Final Rule;
Interim Final Rule-Inspection and Compliance Inspection and Compliance Procedures Procedures (12/13/93) (05/01/94), or its successor
OSHA Instruction CPL 02-00-051, Enforcement VOSH PD 02-003, VOSH Procedures to comply Exemptions and Limitations under the Appropriations with OSHA Enforcement Exemptions and Act (05/28/98) Limitations under the Federal Appropriations Act, OSHA Instruction CPL 2-0.51J (08/01/99), or its successor
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DIRECTIVE NUMBER: CPL 03-00-009 EFFECTIVE DATE: 8/14/08
SUBJECT: OSHA Instruction; National Emphasis Program-Lead
ABSTRACT
Purpose: This Instruction transmits policies and procedures for implementing a National Emphasis Program to reduce occupational exposures to lead.
Scope: OSHA-wide.
References: OSHA Instruction CPL 02-00-103, Field Inspection Reference Manual, September 26, 1994;
OSHA Instruction TED 01-00-015, OSHA Technical Manual, January 20, 1999;
OSHA Instruction CPL 02-02-058, 29 CFR 1926.62, Lead Exposure In Construction; Interim Final Rule-Inspection and Compliance Procedures, December 13, 1993;
OSHA Instruction STD 03-08-001, Welding, Cutting, or Heating of Metals Coated with Lead-Bearing Paint, October 30, 1978;
OSHA Notice 08-03 (CPL 02) Site-Specific Targeting 2008 (SST-08), May 19, 2008.
See other references in Section III below.
Cancellations: OSHA Instruction CPL 02-00-130; National Emphasis Program: Lead, July 20, 2001 is cancelled.
State Impact: This Instruction describes a Federal program change for which State adoption is not required.
Action Offices: OSHA Regional, Area Offices, and Consultation Offices.
Originating Office of Health Enforcement Office
Contact: Directorate of Enforcement Programs
Office of Health Enforcement 200 Constitution Avenue, NW, N3119 Washington, DC 20210
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By and Under the Authority of
Edwin G. Foulke, Jr.
Assistant Secretary
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Executive Summary
This NEP is implemented to direct OSHA's field inspection efforts to address lead exposures in the workplace, including General Industry (1910), Construction (1926), Shipyards (1915), Longshoring (1918), and Marine Terminals (1917). These efforts meet the Department’s Strategic Plan goals in addressing the requirements of the Government Performance and Results Act (GPRA). As a result of this Act, Federal agencies must demonstrate improved performance and devise a system for measuring results. As stated in the DOL’s Strategic Plan 2006-2011 “…DOL will continue to direct inspections and outreach at establishments and industries with the highest injury, illness, and fatality rates and will respond to complaints of serious workplace hazards. …These efforts will be supplemented by National and Local Emphasis Programs designed to target unsafe conditions or high hazard industries.” The reduction of occupational illnesses and employee exposures to lead continues to be one of the Agency’s goals.
Significant Changes
This document supercedes the previous OSHA Instruction for a National Emphasis Program: Lead, CPL 02-00-130, formerly CPL 02-0.130, dated July 20, 2001. Appendix A is a list of industries included to assist OSHA’s field offices in determining industries for targeting. The data for this appendix were provided by the National Institute for Occupational Safety and Health under the Adult Blood Lead Epidemiology and Surveillance Program for the calendar year 2002. OSHA has analyzed this data to determine those industries where elevated blood lead levels indicate a need for increased focus in evaluation of airborne lead exposures.
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Table of Contents
I. Purpose • • • • • • • • 1
II. Scope • • • • • • • • 1
III. References • • • • • • • • 1
IV. Cancellations • • • • • • • • 1
V. Action Offices • • • • • • • • 2
VI. Federal Program Change • • • • • • 2
VII. Background • • • • • • • • 2
VIII. National Emphasis Program Inspections • • • • • 2
IX. National Emphasis Program Goals • • • • • 3
X. Program Procedures • • • • • • • 4
A. LEP Development • • • • • • 4
B. General Industry Complaints and Referrals • • • 6
C. Construction Complaints and Referrals • • • 6
XI. Inspection Procedures • • • • • • • 7
XII. Program Evaluation • • • • • • • 9
XIII. IMIS Coding • • • • • • • • 10
XIV. Full Service Program Support • • • • • • 11
Appendix A: Targeting: SIC/Industry Lists • • • • • A-1
Appendix B: Medical Surveillance Flow Charts • • • • • B-1
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I. Purpose. This instruction describes policies and procedures for implementing a National Emphasis Program (NEP) to reduce occupational exposures to lead.
II. Scope. This instruction applies OSHA-wide.
III. References.
A. OSHA Instruction CPL 02-00-103, Field Inspection Reference Manual (FIRM), September 26, 1994.
B. OSHA Instruction TED 01-00-015: Occupational Safety and Health Administration Technical Manual, January 20, 1999.
C. OSHA Instruction CPL 02-02-058, 29 CFR 1926.62, Lead Exposure in Construction;
Interim Final Rule-Inspection and Compliance Procedures, December 13, 1993.
D. OSHA Instruction STD 03-08-001, October 30, 1978, Welding, Cutting, or Heating of Metals Coated with Lead-Bearing Paint, October 30, 1978.
E. OSHA Notice OSHA Notice 08-03, (CPL 02) Site-Specific Targeting 2008 (SST-08), May 19, 2008
F. Memorandum for Regional Administrators, From OSHA National Office Directorates;
November 17, 2003, Subject: Coding Instruction Update for the 2003-2008 Strategic Management Plan.
G. OSHA Instruction, CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, May 28, 1998.
H. OSHA Instruction, CPL 02-00-025, Scheduling System for Programmed Inspections, January 4, 1995.
I. Rosenman, K.D, et al., Evaluation of the Effectiveness of Following Up Laboratory Reports of Elevated Blood Leads in Adults; AIHAJ; 62:371-378 (2001).
J. Enander, R.T., et al., Lead and Methylene Chloride Exposures among Automotive Repair Technicians; J Occ Env Hyg; 1: 119-125 (2004).
K. Enander, R.T., et al., Chemical Characterization of Sanding Dust and Methylene Chloride Usage in Automotive Refinishing: Implications for Occupational and Environmental Health; AIHAJ; 63(6): 741-749 (2002).
L. Coyle, P., Kosnett, M.J., Hipkins, K., Severe Lead Poisoning in the Plastics Industry: A Report of Three Cases; Am. J. Ind. Med., 47:172-175 (2005).
IV. Cancellations.
M. OSHA Instruction CPL 02-00-130; National Emphasis Program: Lead, July 20, 2001. 1
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V. Action Offices.
A. Responsible Office. Office of Health Enforcement, Directorate of Enforcement Programs.
B. Action Offices. OSHA Regional Offices, Area Offices, and Consultation Offices.
C. Information Offices. OSHA National Office Directorates.
VI. Federal Program Change. This instruction describes a Federal Program Change for which State adoption is not required. States with a similar Strategic Plan goal targeting lead may wish to implement procedures analogous to those contained in this directive and are encouraged to use the IMIS Performance Measurement tracking system by submitting the necessary Coding Instructions and appropriately coding all related activities.
VII. Background. The toxic effects of occupational exposure to lead are well established. Lead is a potent, systemic poison that serves no known useful function once absorbed by the body. Lead adversely affects numerous body systems and causes forms of health impairment and disease which can arise from acute or chronic exposure, including damage to blood-forming, nervous, urinary, and reproductive systems. In 1990, the National Institute for Occupational Safety and Health (NIOSH) set as a national goal the elimination of lead exposures that result in workers having blood lead concentrations greater than 25 µ g/dL of whole blood.
This NEP is being implemented to direct OSHA's field inspection efforts to address lead exposures in the workplace, including General Industry (1910), Construction (1926), Shipyard (1915), Longshoring (1918) and Marine Terminals (1917). These efforts continue to assist the Department in meeting the goals of DOL’s Strategic Plan 2006-2011.
DOL’s Strategic Plan goals are to effect a reduction in occupational fatalities, injuries, and illnesses. The Agency continues to be committed to the reduction of the most prevalent types of workplace injuries and illnesses. To achieve these goals, the Agency focuses inspection resources on serious workplace hazards including amputations, and the occurrences of silica and lead exposures. The purpose of this NEP is to outline an effective strategy for decreasing occupational lead exposures.
NIOSH provided the 2002 Adult Blood Lead Epidemiological Survey (ABLES) data to OSHA to assist in providing a diverse list of industries to be selected by the Regional and/or Area Offices when developing their targeting strategies under this NEP. During the NEP revision period, the 2004 ABLES data was reviewed by OSHA and was found to be less inclusive of specific industry identifiers than was the 2002 data. It was determined that providing a list of industries selected from the 2002 data, as opposed to the 2004 data, would afford a more representative and comprehensive selection of industries to be used by OSHA field offices in the implementation of this NEP.
VIII. NEP Inspections. All inspections, regardless of the industry, where the compliance officer determines that there is potential employee exposure to lead are to be counted under this NEP as a Strategic Plan inspection.
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OSHA will measure its progress toward meeting a reduction in lead poisoning by conducting
inspections to evaluate employee exposures to airborne lead. In addition, during these inspections, Compliance Officers may evaluate surface concentrations of lead as well as the employer’s programs related to the availability of hygiene facilities, practices and engineering controls, personal protective equipment, and medical surveillance.
The activities covered under this NEP include inspections and inquiries conducted in any industry or at any work site where the Agency determines that there is potential employee exposure to lead. Compliance Officers must make an initial determination of whether or not the potential exists for employee exposure to lead. As an example, if the employer is removing lead sewer pipes or is engaged in bridge work, a potential exposure to lead exists if the employees are engaged in activities which generate dust or fumes, such as sawing, grinding, abrasive blasting or torch cutting. In such potential exposure situations, the inspection would be coded as a strategic plan, lead-related NEP inspection. If, in the case of the above example, the sewer pipes are removed without the generation of dust or fumes, there would not be potential employee exposure and the inspection would not be so coded.
NEP inspections must be designated as such in the IMIS by marking "Strategic Plan Activity" and "National Emphasis Program" on the OSHA 1 (see Section XIV, "IMIS Coding"). This guidance applies to all OSHA inspections (programmed and unprogrammed) in all industries, regardless of whether sampling was conducted.
IX. National Emphasis Program Goals. Under this NEP, OSHA’s progress in meeting the Strategic Plan goals in relation to occupational lead exposures will be determined by measuring airborne
exposures to lead and evaluating employers’ efforts to minimize or eliminate the hazards from the workplace.
To accomplish this goal, OSHA will direct resources towards inspections of industries in which
lead exposures occur. Subsequent to the initial inspection, follow-up site visits will be conducted in all establishments where exposures were measured at or above the permissible exposure limit (PEL) or above the action level where the employer has not taken preventive/corrective action (as required by the standard). Inspections will also be conducted in establishments where reported employee blood lead levels (submitted to OSHA by referral from other government agencies or others such as clinics, physicians, or other licensed healthcare professionals, etc.) were at or above 25 µ g/dL.
Employee exposure to airborne lead will be sampled, whenever possible, during both the initial and follow-up inspection. Medical surveillance records will be reviewed, whenever available, by CSHOs during NEP lead inspections.
In addition, during both the initial and follow-up inspections, Compliance Officers will evaluate training, use of personal protective equipment, surface concentrations of lead and the availability of hygiene facilities, work practices and engineering controls.
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X. Program Procedures.
A. LEP Development.
Inspections conducted under this NEP will focus on industries where employees are potentially exposed to levels of lead in excess of the permissible exposure limit (PEL).
To assist the Regional Office in their selection, a list of industries and their SICs is provided in Appendix A. Appendix A to this document provides a list of SIC codes for industries where employees exhibit high blood lead levels. This blood lead data was obtained from the 2002 Adult Blood Lead Epidemiological Survey (ABLES) which was provided to OSHA from NIOSH.
This list is by no means comprehensive, but is intended as a resource. Each Regional Office (RO) that does not already have a Local Emphasis Program (LEP) for lead, will develop and implement an LEP for lead based on one or more of the industries in Appendix A.
- Industry Selection Each Regional Office (RO) will identify the industry sectors that are to be selected by the RO and shall then prepare a master list of SIC codes from those listed in Appendix A. The rational for selecting each industry shall be documented, and may include information such as, but not limited to:
a. History of overexposures, based on previous local inspection history
within a RO’s jurisdiction of industries listed in Appendix A. b. Limited or no local inspection history of an industry listed in Appendix A.
c. Industries that are not included in Appendix A, but are known based on local knowledge (i.e., a documented history of referrals from local agencies or healthcare providers, or previous inspection histories, etc.), to have demonstrated a pattern of lead overexposures or reports of employees experiencing elevated blood lead levels. 2. Site Selection
a. Master List Generation After identifying the relevant industries, each Regional Office, using all available information, will prepare a master list of establishments within the designated industries. These lists shall be prepared using either the procedures set forth in CPL 02-00-025 (CPL 2.25I) Scheduling Systems for Programmed Inspections, or VOSH Program Directive 02-105A CPL 04-00-001, Inspection Scheduling for Construction (01/15/14).
Establishments with fewer than 10 employees shall also be included in this NEP. Establishments will be placed on the list in alphabetical order, and appropriate deletions shall be made in accordance with OSHA Instruction CPL 02-00-025 (CPL 2.25I), Scheduling System for Programmed Inspections, at B.1.b.(1)(b)(6). Establishment sources may include:
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-
the Dun & Bradstreet employer list (available from the National Office);
-
commercial directories;
-
telephone listings;
-
local knowledge of establishments;
- Dodge reports for construction sites.
b. Deletions
The Regional Office may delete from their list any facility/site that meets the applicable deletion criteria listed in OSHA Instruction CPL 02-00-025(CPL 2.25I), Scheduling System for Programmed Inspections, or VOSH Program Directive 02-105A, Inspection Scheduling for Construction (01/15/14). Further, the Regional Offices may delete any establishment that has had an inspection where exposures to lead have been evaluated within the current year or previous three (3) fiscal years where: no serious violations were cited related to lead; a subsequent inspection documented employer efforts to abate all serious hazards; or no cases of increased blood lead levels were identified. In the event an establishment meeting these criteria is not deleted, the decision shall be documented and the reasons for including it shall be stated.
c. Cycle Generation Each establishment on the corrected list will be assigned a sequential number, starting at the top of the list with number one. A random
number table will then be applied to create the first inspection cycle of five or more establishments. Subsequent cycles will be created in the same way until the expiration of the LEP or until all establishments on the list have been assigned to a cycle. Cycles may be created all at once or as needed, and need not be of the same size.
Whenever an office becomes aware of a previously unknown establishment in one of the identified SICs, that establishment shall be added to the master list for inclusion in the next inspection cycle.
When using the construction site list, the Regional Office may check with other state agencies such as the DOT to determine whether or not the selected site is active.
3. Site-Specific Targeting (SST-08)
Targeted establishments which also appear on the Site-Specific Targeting (SST) list will undergo a DART/DAFWII evaluation. The evaluation of the establishment’s DART and DAFWII rates shall be made in accordance with OSHA Notice CPL 08-03 (CPL 02), May 19, 2008, Site-Specific Targeting 2008 (SST-08).
If the evaluation shows that the site has DART/DAFWII rates below the SST-08 cut points, the inspection will be conducted focused on only the hazards related to lead, otherwise the lead inspection should be done concurrently with the SST 5
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Plan. If this is not possible, the SST plan inspections have priority and are to be conducted prior to NEP inspections. Refer to OSHA Notice CPL 08-03 (CPL 02), May 19, 2008, Site-Specific Targeting 2008 (SST-08).
- LEP Evaluation One year from implementation, each LEP will be evaluated and a determination made as to the effectiveness of the LEP using Appendix A of VOSH PD 01-010, Procedures for Approval of Local Emphasis Programs (LEPs) (02/15/14). If the LEP is determined to be ineffective, different industries from Appendix A will be selected and a new LEP will be developed and implemented. If the LEP is determined to be effective but the master list of establishments has been depleted to the point of having too few work sites for each cycle, different industries from Appendix A will be selected and a new LEP will be developed and implemented. If the LEP is determined to be effective and the master list of establishments still contains enough employers, the LEP may be renewed.
B. General Industry Complaints and Referrals.
Every complaint or referral for any general industry operation, where there exists the potential for lead exposure, must be handled as follows:
-
Based upon the information provided, all potential lead work sites/establishments brought to the attention of the Regional Office must be handled in accordance with the procedures outlined in VOSH PD 02-012, Complaint Policies and Procedures (04/01/03).
-
Referrals received from the Virginia Department of Health or within the Department of Labor and Industry (DOLI), alleging elevated employee blood lead levels (defined as blood lead levels at or above 25 µ g/dL) and/or involving take-home exposures, shall be considered high-gravity, serious and must be handled by inspection.
Referrals of elevated employee blood leads (which report one or more worker blood lead level(s) which equals or exceeds 25 µ g/dL of whole blood) will be inspected. At the discretion of the Regional Director, worksites may be inspected even if the employee's blood lead level is below 25 µ g/dL when the Regional Office is aware of unusual circumstances which would warrant an inspection.
Such unusual circumstances may include pregnancy or possible poisoning of family members.
C. Construction Inspection Complaints and Referrals
Every complaint or referral for any construction operation where there exists the potential for lead exposure must be handled as follows:
- Whenever a CSHO observes or the Regional Office receives information (through any source or means) regarding work operations where the potential for exposure to lead exists, the CSHO must: 6
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a. Document the status and condition of the work operation as far as they are known, noting any serious hazard(s). Documentation of the events leading up to the observation must be maintained in the file.
b. Note the location of the worksite and the name and address of the employer(s) performing the operation.
c. Provide the Team Leader or Regional Director with the information.
Based upon the information provided, all potential lead work sites brought to the attention of the Regional Office must be handled in accordance with the procedures outlined in VOSH PD 02-012, Complaint Policies and Procedures (04/01/13).
- Referrals received from States’ Departments of Health or within the Department of Labor and Industry (DOLI), alleging elevated employee blood lead levels, that is blood lead levels at or above 25 µ g/dL, and/or involving take-home exposures, shall be considered high-gravity, serious and must be handled by inspection.
Referrals from other official bodies (clinics, physicians, or other licensed health care professionals) reporting one or more employee blood lead level(s) which equals or exceeds 25 µ g/dL of whole blood will be inspected. At the discretion of the Regional Director, referred worksites may be inspected even if the employee's blood lead level is below 25 µ g/dL when the Regional Office is aware of unusual circumstances which would warrant an inspection. Such unusual circumstances may include pregnancy or possible poisoning of family members.
-
The discovery of work sites to be inspected under this NEP may be the result of a search to find a specific type of operation, at the discretion of the Assistant Commissioner. Such searches will consist of observations that normally occur during the course of routine travel during duty or non-duty hours. When including such sites, the reasons for the search and the manner in which it was conducted shall be documented.
-
If during the course of any construction inspection (including programmed inspections) a safety CSHO encounters a site where lead exposures exist, appropriate health referrals will be made.
XI. Inspection Procedures.
A. All inspections under this NEP must address all aspects of any potential lead work or exposure and include a review of all related written documentation, i.e., record-keeping, monitoring, compliance program, medical, respirator fit testing and procedures, hazard communication, and training materials.
- During the normal conduct of an NEP inspection, the CSHO will review the employer’s medical surveillance program for lead. All blood lead information, where available, will be reviewed as part of the inspection.
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The CSHO will perform a detailed assessment of the employer’s hazard communication program as it relates to the operations and chemicals used in the processes where lead exposures may occur. The evaluation will include an MSDS review in accordance with VOSH’s current policy on MSDS review.
-
All inspections conducted under this NEP will include an evaluation of the employer’s engineering controls for the processes where lead exposures above the permissible exposure limit occur. Administrative controls put in place by the employer will also be evaluated as to their effectiveness in reducing exposures.
-
A detailed evaluation of the employer’s personal protective equipment (PPE) and respiratory protection programs will be conducted on every inspection where lead hazards exist. Evaluation of the employer’s respirator program will be done in accordance with VOSH PD 02-411A, Inspection Procedures for the Respiratory Protection Standard, §1910.134 (09/30/14).
-
The employer’s hygiene program will be reviewed to determine if hand-to-mouth contact may be contributing to employee exposure to lead. The housekeeping procedures and evaluation and use of PPE will be assessed and documented.
-
CSHOs will conduct personal air monitoring and collect wipe samples, as appropriate, to document exposures (see VOSH PD 09-052A, OSHA Technical Manual (OTM)) for all inspections under this NEP where it is possible to sample for lead exposures. Monitoring may not be necessary, however, if at the time of the inspection, the employer provides reliable and recent data showing employees’ exposures are below the action level and the conditions in the work place are the same as when the employer completed sampling. Additionally if, during a follow-up inspection, the employer’s sampling data shows that engineering controls have reduced the employee exposures to below the AL and the data is reliable, air sampling may not be necessary.
-
In any inspection where the decision is made to utilize the employer’s monitoring data to characterize employee exposures, documentation related to this decision must be included in the case file, including copies of the employer’s exposure data. Where it is not possible to obtain copies of the employer’s sampling
results, the CSHO will conduct the necessary air monitoring.
-
In certain circumstances, the Regional Director may use the employer’s monitoring data in issuing proposed citations for employee overexposures to lead. However, employer-generated data may only be used where personal air sampling is not possible and the employer’s data meets the requirements of §1910.1025(d) or §1926.62(d). It is expected that this will occur only rarely and the Regional Director will be responsible for ensuring that adequate documentation related to that decision is included in the case file.
-
Where air monitoring is conducted during a construction inspection, the regional office will request expedited sample analyses from the SLCTC. 8
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B. While evaluating employee exposures to lead, CSHOs also need to be aware of and evaluate potential exposures to other metals including, but not limited to, arsenic, manganese, chromium, cadmium, copper, and magnesium. CSHOs should not request an ICP (inductively coupled plasma) analysis for abrasive blasting operations or when
an arsenic analysis is needed without first contacting the inorganic lab of the Salt Lake Technical Center. Atomic Absorption (AA) Spectroscopy can be requested for arsenic and any three of the following metals: lead, cadmium, iron, copper, or zinc, or the other specific metals. With AA spectroscopy a total of four metals can be requested per sampling filter.
C. During inspections conducted under this NEP, CSHOs will provide the employer with informational documents regarding the appropriate lead standard, the health effects of lead, effective control measures, and employer and employee rights and responsibilities. Documents of this nature may be obtained from OSHA's Office of Publications, the Directorate of Technical Support, from OSHA's web.
D. Joint Safety and Health Inspections - Industrial hygienists conducting construction inspections should consult with safety CSHOs on serious safety hazards such as falls, electrocution, struck-by, or caught-in hazards and should file referrals where appropriate. Where resources permit, a joint safety and health inspection should be conducted.
E. The Compliance Safety and Health Officer (CSHO) may expand the scope of the inspection beyond the areas related to occupational exposures to lead if other hazards or violative conditions are observed and/or brought to their attention. The CSHO shall follow the guidelines in Chapter 5, I. B. of the VOSH Field Operations Manual (FOM) when expanding the scope of the inspection.
F. The protection of CSHOs during any inspection is an issue of importance. In order to ensure adequate protections, Compliance Officers shall conduct a hazard determination to establish the presence of lead (or other hazardous substances) prior to initiating the walkaround. This hazard determination will rely on information such as previous inspection history, material safety data sheets, professional judgment, and/or previous exposure monitoring surveys. Personal protective equipment to be used during the inspection, such as respirators, gloves, and/or protective clothing is to be made available to the CSHO prior to the inspection and will be worn based upon the CSHOs determination of a hazard.
G. Regional Directors are instructed to ensure that Compliance Officers understand how their own PPE is to be handled after an inspection, including provisions for laundering and equipment decontamination.
XII. Program Evaluation.
H. Follow-up inspections will be conducted for all cases with documented exposures above the permissible exposure limit (PEL) for lead and for all cases with documented exposures above the action level where the employer has failed to take appropriate action. The follow-up inspection will be conducted within two to three months after the 9
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final abatement date for the cited violations. During the follow-up visit the CSHO shall verify the employer’s abatement documentation/verification by carefully evaluating any and all air monitoring results, implemented engineering controls, personal protective equipment requirements (including respiratory protection), housekeeping and
employee information and training. Procedures for follow-up inspections will be in accordance with the VOSH FOM, Chapter 3, IV.A.
Personal air sampling will be conducted by VOSH staff in all situations unless the job task or job site is no longer active. Use of employer- generated monitoring data is not permitted for the purpose of abatement verification under this NEP unless an exception applies (see Section XI.A.6.).
B. Abatement documentation/verification will be submitted to or otherwise collected by the Regional Office for all other violations of the lead standards or other VOSH regulations. The abatement information must be included in the case file in a timely manner. Whenever possible, case files are to be closed in the fiscal year in which the intervention was conducted to allow the data to be applied to the Agency’s Strategic Goal accomplishments. In cases where implementation of engineering controls extends beyond the fiscal year in which the intervention was conducted, the case files will be closed as soon as possible.
XIII. IMIS Coding.
C. The following instructions remove the requirement for recording "Optional Information" for lead on IMIS forms. The instructions which follow are for recording lead inspections under this Lead NEP and the Strategic Plan. This instruction does not affect the coding of approved LEPs. Coding for approved LEPs will continue as before.
The following instructions for completing enforcement forms OSHA-1, OSHA-7, OSHA-36, OSHA-55 and OSHA-90 and Consultation Request Form-20 and Visit Form-30 must be applied when recording inspections or consultation visits conducted under this NEP:
VOSH-1: Select Lead from both choice lists in Item 25d, National Emphasis Program and in Item 25f, Strategic Plan Activities.
VOSH-7: Complete in the normal manner. It is not necessary to code for this NEP on the VOSH-7.
VOSH-36: Complete in the normal manner. It is not necessary to code for this NEP on the VOSH 36.
VOSH-55: Select Lead from both choice lists in Item 15, National Emphasis Program and in Item 17, Strategic Plan Activities.
VOSH-90: Complete in the normal manner. It is not necessary to code for this NEP on the VOSH 90.
10
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B. OSHA Consultation Project Offices in Federal Enforcement States.
- Whenever a visit is made in response to this NEP, Consultation Request and/or Visit forms are to be completed as follows:
"National Emphasis Program," Item No. 25, when a request is being scheduled in response to the NEP.
Complete the Visit Form-30 in the normal manner and enter the code Lead in "National Emphasis Program," Item No. 28, when a visit has been made and findings are appropriate to this NEP (potential or actual lead exposures have been found).
XIV. Full Service Program Support.
A. For states that have enacted requirements for mandatory reporting of elevated blood lead levels, the Regional Office should contact the state agencies responsible for these programs and request information on workplace exposures associated with elevated blood lead levels. Regional Offices are strongly encouraged to develop alliances, memoranda of understanding, or other agreements which will forge cooperative relationships and result in information sharing with the state’s Departments of Health (VDH) and/or Labor.
B. Each Regional/Consultation Program Office is encouraged to develop outreach programs that will support the efforts of the Agency in meeting the Strategic Plan goals. Such
programs could include letters to employers, professional associations, local safety councils, apprenticeship programs, local hospitals and occupational health clinics, and/or other industry employer organizations that work with or potentially generate lead exposures. Speeches, training sessions, and/or news releases through the local newspapers, safety councils and/or industrial hygiene organizations can provide another avenue for dissemination of information. Regional Office Alliances developed with industries would also be an effective way to reach out to affected employers and employees.
C. The Directorate of Science, Technology and Medicine has prepared materials which will be of assistance in this outreach effort. A variety of online resources can be accessed through OSHA’s public webpage, www.osha.gov. There is a technical link page specific to lead under the alphabetical “Site Index”. Also included to provide additional assistance (as Appendix B) in this document are medical surveillance flow charts.
11
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APPENDIX A
Targeting The goal of the NEP is to affect a reduction in employee blood lead levels by reducing
lead exposures throughout industry. To meet this goal, and to effectively manage OSHA’s/VOSH’s limited resources, Appendix A provides a list of industries where lead exposures occur. Regional Offices will focus enforcement efforts on the industries from this list. They will select the industries to be included by following the procedures previously outlined in this document.
The industries listed in the table in this appendix are provided to assist regional offices in targeting. The industry list was culled from the Adult Blood Lead Epidemiological Surveillance (ABLES) database for 2002. The ABLES data was provided to OSHA by the National Institute for Occupational Safety and Health. This data includes employee blood lead levels reported by laboratories in states who participate in the ABLES program. OSHA has analyzed this information resulting in the identification of industries where there was a tendency for elevated employee blood lead levels.
The NIOSH ABLES database for 2002 uses SIC codes for industry designation. While it is understood that the NAICS system is currently in use to identify industries, those codes were not available as part of the ABLES data for 2002. NIOSH is adding a NAICS field as part of the data collection. The NAICS system for industry identification will be available for this NEP in future years.
The NAICS system correlates to the SIC codes in some cases but some industry SICs do not translate directly to a single NAICS code. OSHA’s NCR system has a drop down list for NAICS codes and there is a link to the NAICS US Census web site within the Inspection Preparation section of OSHA’s home page. The industry data will be updated when future data becomes available.
A-1
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SIC Selection Criteria: In 2002, laboratories for 35 states reported individual blood lead levels to the NIOSH ABLES program. Of these, 27 states reported blood lead levels along with the SIC code for the industry in which the employee worked. The blood lead data for these 27 states was evaluated to determine industries for targeting. The data was first sorted by SIC, then by each individual’s peak BLL. The SICs chosen for targeting were those demonstrating that within the industry sector, 40 or more individuals had peak blood lead levels at or above 25 µ g/dl.
Additionally, Appendix A includes some SICs which did not meet the selection criteria described above, but were included due to historical significance; similarity to the selected (or “sister”) SIC; or were flagged due to other considerations as described in the table. These industries are denoted by symbols and explanations provided below the table.
Please also note the explanation for SICs 7997/7999, as this industry classification covers a broad range of employment, most of which will not be targeted by this NEP.
A-2
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SIC TABLE
SIC Industry Historical Previous ABLES Other
1521 GC Single Family Residential Construction Y-Operations#
1522 GC Other Residential Construction Y-Operations# 1541 GC Non Residential Construction 1622 Bridge Tunnel Construction Y 1629 Heavy Construction, NEC Y 1721 Painting & Paper Hanging Y 1791 Steel Erection Y * 1795 Wrecking and Demolition Work Y 1799 Special Trade Contractors NEC Y 2816 Manufacturing: Inorganic Pigments Y * 2819 Manufacturing: Inorganic Chemicals NEC Y * 2821 Plastics Materials, Synthetic Resins, & Non- Y Y-Paper Vulcanizable Elastomers 2851 Mfr of Paints, Varnishes, Lacquers, Enamels 3053 Mfr of Gaskets, Packing and Sealing Devices 3211 Manufacturing: Flat Glass Y Y-MI data 3229 Manufacturing: Pressed & Blown Glass Products Y 3231 Mfr of Glass Products Made of Purchased Glass 3312 Steel Works-Blast Furnaces 3331 Primary Smelting of Copper Y * 3339 Primary Smelting of Non Ferrous Metals Y 3341 Secondary Smelting of Non-Ferrous Metals Y 3351 Rolling, Drawing, Extruding of Copper 3356 Rolling of Non Ferrous Metals Except Cu and Al 3366 Copper Foundries Y 3369 Non-Ferrous Foundries Except Cu and Al 3399 Primary Metal Products, NEC 3489 Ordinance & Accessories, NEC 3491 Manufacture of Industrial Valves 3492 Manufacture of Fluid Power Valves Y-Operations# 3568 Mechanical Power Transmission Equipment NEC 3675 Manufacture of Electronic Capacitors Y * 3691 Storage Batteries Y 3692 Primary Batteries Y 3713 Manufacture of Truck/Bus Bodies Y * 3715 Manufacture of Truck Trailers Y * 5093 Scrap and Waste Materials Y 7532 Automotive Repair & Painting Y- Papers 7539 Automotive Repair Shops NEC Y Y 7997 Membership Sports & Recreation Clubs Y-Operations# 7999 Misc. Sports, Recreation & Amusement, NEC Y
A-3
[TABLE 24-1] SIC | Industry | Historical | Previous ABLES | Other 1521 | GC Single Family Residential Construction | | | Y-Operations# 1522 | GC Other Residential Construction | | | Y-Operations# 1541 | GC Non Residential Construction | | | 1622 | Bridge Tunnel Construction | Y | | 1629 | Heavy Construction, NEC | Y | | 1721 | Painting & Paper Hanging | Y | | 1791 | Steel Erection | Y * | | 1795 | Wrecking and Demolition Work | Y | | 1799 | Special Trade Contractors NEC | Y | | 2816 | Manufacturing: Inorganic Pigments | Y * | | 2819 | Manufacturing: Inorganic Chemicals NEC | Y * | | 2821 | Plastics Materials, Synthetic Resins, & Non-Vulcanizable Elastomers | | Y | Y-Paper 2851 | Mfr of Paints, Varnishes, Lacquers, Enamels | | | 3053 | Mfr of Gaskets, Packing and Sealing Devices | | | 3211 | Manufacturing: Flat Glass | | Y | Y-MI data 3229 | Manufacturing: Pressed & Blown Glass Products | | Y | 3231 | Mfr of Glass Products Made of Purchased Glass | | | 3312 | Steel Works-Blast Furnaces | | | 3331 | Primary Smelting of Copper | Y * | | 3339 | Primary Smelting of Non Ferrous Metals | Y | | 3341 | Secondary Smelting of Non-Ferrous Metals | | Y | 3351 | Rolling, Drawing, Extruding of Copper | | | 3356 | Rolling of Non Ferrous Metals Except Cu and Al | | | 3366 | Copper Foundries | Y | | 3369 | Non-Ferrous Foundries Except Cu and Al | | | 3399 | Primary Metal Products, NEC | | | 3489 | Ordinance & Accessories, NEC | | | 3491 | Manufacture of Industrial Valves | | | 3492 | Manufacture of Fluid Power Valves | | | Y-Operations# 3568 | Mechanical Power Transmission Equipment NEC | | | 3675 | Manufacture of Electronic Capacitors | Y * | | 3691 | Storage Batteries | Y | | 3692 | Primary Batteries | Y | | 3713 | Manufacture of Truck/Bus Bodies | Y * | | 3715 | Manufacture of Truck Trailers | Y * | | 5093 | Scrap and Waste Materials | Y | | 7532 | Automotive Repair & Painting | | | Y- Papers 7539 | Automotive Repair Shops NEC | Y | Y | 7997 | Membership Sports & Recreation Clubs | | | Y-Operations# 7999 | Misc. Sports, Recreation & Amusement, NEC | | Y |
[/TABLE]
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- These industries were selected for targeting as they are SICs which are historically significant for lead exposures. They did not meet the selection criteria for this revision of the NEP, but are considered important for targeting purposes, nonetheless.
SIC selections marked as indicated were added based on the close link in industrial application between one SIC and the other “sister” SIC.
MI Data – Although this SIC (3211) did not meet the selection criteria under this NEP, it appeared on the previous targeting list, and data provided by the State of Michigan indicated that this SIC remains of concern for elevated blood lead levels in that State.
Papers Referenced for SIC 7532 – Enander, R.T., et al., Lead and Methylene Chloride Exposures among Automotive Repair Technicians; J Occ Env Hyg; 1: 119-125 (2004).
Enander, R.T., et al., Chemical Characterization of Sanding Dust and Methylene Chloride Usage in Automotive Refinishing: Implications for Occupational and Environmental Health; AIHAJ; 63(6): 741-749 (2002). Also, information provided by the Commonwealth of Massachusetts flagged this SIC, as elevated airborne exposures have been measured in automotive repainting operations. Many material safety data sheets for auto paint do not indicate lead as a component. Inspections in automotive repainting operations should include air sampling for lead and evaluation of the information on the MSDS.
Paper Referenced for SIC 2821 – Coyle, P., Kosnett, M.J., Hipkins, K., Severe Lead Poisoning in the Plastics Industry: A Report of Three Cases; Am. J. Ind. Med., 47:172-175 (2005). This SIC was also flagged in the targeting list for the previous Lead NEP.
7997 is Membership Sport and Recreation Clubs and includes gun clubs, shooting clubs and hunt clubs as well as such establishments as aviation clubs, beach clubs and yacht clubs. Similarly, 7999 is Amusement and Recreation Services, Not Elsewhere Classified and includes shooting galleries and shooting ranges as well as such establishments as baseball instruction schools, moped rental and yoga instruction. It is assumed that the occupational lead exposure to employees in these two SIC codes are from gun clubs and shooting ranges and galleries. Under this NEP, OSHA/VOSH would not be interested in inspecting establishments within these SIC codes unless lead exposure is suspected, such as at shooting ranges. (Also, OSHA/VOSH does not have jurisdiction with respect to exposure of non- employee members or participants of these, but only with respect to exposures of employees.) In this regard, Regional Offices should be aware that armories and law enforcement organizations may house shooting ranges as well. Federal law enforcement facilities would fall under Federal OSHA jurisdiction, while municipal facilities would fall under State control.
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B-1
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B-2
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B-3
Virginia Child Labor Regulations and ProceduresDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER NINE CHILD LABOR
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Child Labor – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Child Labor – Page 3
Section 1.00 Coverage
Virginia's Child Labor Laws are set forth in Chapter 5 of Title 40.1 of the Code of Virginia. In addition, the following three regulations have been promulgated pursuant to Chapter 5: 1) Virginia Hours of Work for Minors; 2) Virginia Rules and Regulations Declaring Hazardous Occupations; and 3) Virginia Regulations Governing the Employment of Minors on Farms, in Gardens, and in Orchards. These laws and regulations apply to all private industry employers employing children, unless a specific exemption is provided.
Also, there are federal child labor laws. Employers meeting the coverage requirements of the federal Fair Labor Standards Act must also abide by the federal requirements. Whenever state and federal law differ, the more stringent standard shall apply. The Wage and Hour Division of the U. S. Department of Labor administers and enforces the federal child labor statutes and regulations.
Child Labor – Page 4
Section 2.00 Youth Employment Certificates (Work Permits), Work Training Certificates, and Theatrical Permits A. Youth Employment Certificates (work permits) are issued by the Labor and Employment Law Division of the Department of Labor and Industry. Minors must be at least 14 years of age to secure an Employment Certificate. An Employment Certificate must be issued each time a minor begins employment, after a break in employment, or when the job duties change substantially. Once a minor turns sixteen, an Employment Certificate is no longer required.
B. There are 2 methods available for obtaining youth Employment Certificates. Instructions for both options are available on the Department of Labor and Industry website: www.doli.virginia.gov .
(1) Electronic Process (Preferred)
(a) This is a 3 step completely electronic (no paperwork, no mailing of forms) process available through a link on the Department’s website. Detailed instructions are provided throughout the process. It is IMPORTANT to read all the instructions!
The youth Employment Certificate is issued directly to the employer electronically through the account they established during the application process.
(b) Employment Certificates issued through this process are subject to final approval by Division staff. Important Note: All electronic youth Employment Certificate issued are subject to revocation and/or modification as necessary.
(2) The Manual Process requires completion and submission 2 paper forms which are available for download from the website or if necessary may be mailed to the applicant.
(a) Intention to Employ Form - this is to be completed by the employer stating the duties the minor will be performing and certifying that the minor will be employed in accordance with the hours of work limitations. This form must state the specific proof of age document that the employer has reviewed and has retained on file.
(b) Permission for Employment Form - this is filled out by the parent or legal guardian.
Important Note: This form must be signed in the presence of a notary and contain an official notary seal.
(c) Both forms must be mailed together to the Division at the address provided on the bottom of the form.
(d) Application forms will be processed and reviewed for final approval. Important Note: The youth Employment Certificate will be mailed within 10 business days to the employer.
Child Labor – Page 5
(e) Should the application be deficient or otherwise unacceptable a notice will be mailed to the Parent/Guardian of the applicant explaining the reason for denial. A remedy, if possible, will be suggested.
C. Acceptable Proofs of Age
(1) Birth Certificate
(2) Passport
(3) Baptismal Record
(4) Government ID
D. All youth Employment Certificate documentation will be maintained by the Division until the minor turns 18 years of age.
E. Minors performing volunteer work and minors employed on farms, orchards, and in gardens are exempt from securing the work permit.
F. Work-Training Certificate: ` (1) Issued by the Coordinator of Schools. (2) Allows minors 14 and 15 years of age to work during school hours and in occupations typically prohibited until age sixteen, not including hazardous occupations. They must also obtain a work permit.
(3) Allows minors and 16 and 17 years of age to be employed in Hazardous Occupations as defined by 16VAC15-30-20, Nos. 4, 7, 9, 10, 11, 13, and 15.
(4) By issuing the Work-Training Certificate, the Coordinator certifies to the Department that the minors are employed under the following conditions:
(a) The student learner is enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority or in a course of study in a substantially similar program conducted by a private school. (b) The student learner is employed under a written agreement which provides: 1. that the work of the student learners in the occupations declared particularly hazardous shall be incidental to the training; 2. that such work shall be intermittent and for short periods of time, and under the direct and close supervision of a qualified and experienced person; 3. That safety instruction shall be given by the school and correlated by the employer with on-the-job training; and, (d) that a schedule of organized and progressive work processes to be performed on the job shall have been prepared.
Child Labor – Page 6
(c) Each such written agreement shall contain the name of the student learner, and shall be signed by the employer and the school coordinator or principal. Copies of each agreement shall be kept on file by the school, the employer, and the Department of Labor and Industry. This exemption for the employment of student learners may be revoked in any individual situation where it is found that reasonable precautions have not been observed for the safety of minors employed thereunder. A high school graduate may be employed in a occupation in which training has been completed as provided in (1) and (2) above as a student learner, even though the minor is not yet 18 years of age.
G.
Theatrical Permits
- Issued for minors under 16 years of age to be employed in a drama, play, performance, concert or entertainment.
- Management of the theater or other public place where performance is to be held must secure a permit from the Department of Labor and Industry: (a) The application form is processed by the Labor and Employment Law Division. (b) Application must be sent to the Department at least 5 days before the performance. (c) There are no restrictions on hours of work for minors who have obtained a valid theatrical permit. (d) The permits are issued by the Division. (e) Minors cannot appear in performances that the Department deems detrimental to their health or morals or which causes their education to be neglected or hampered.
Child Labor – Page 7
Section 3.00 Hours of Work
A.
Non-agricultural employment
Minors 16 and 17 years of age
No restrictions on the hours of work.
Minors 14 and 15 years of age
(1) May not work more than 3 hours a day on a school day.
(2) May not work more than 18 hours a week in a school week. (3) May not work more than 8 hours a day on a non-school day. (4) May not work more than 40 hours a week in a non-school week.
(5) May not work before 7 a.m. or after 7 p.m., except between June 1st and Labor Day, they may work as late as 9 p.m.
(6) May not work during school hours unless enrolled in a school worktraining program and certified with a work-training certificate.
(7) Must be given a 30-minute rest or meal period after 5 hours of continuous work.
Minors 12 and 13 years of age
(1) Newspaper carriers cannot work before 4 a.m., after 7 p.m., or during school hours.
B.
Agricultural employment
Minors under 16 years of age cannot be employed during the hours school is in session.
Must be given a 30-minute rest or meal period after 5 hours of continuous work.
The restrictions in 1 and 2 do not apply to minors employed by their parent or a person standing in the place of a parent on farms, gardens, and in orchards owned or operated by such parent or person.
C.
Exemptions to Hours of Work Restrictions
There are no restrictions on hours of work in the following situations: Child Labor – Page 8
Non-agricultural jobs where the minor’s parent owns the business. The parent must be the sole owner of the business.
Page or clerk for either the House of Delegates or the Senate of Virginia.
Domestic work when such work is performed in connection with the minor's own home and directly for the parent or other such person standing in the place of a parent.
Work on farms, gardens, or in orchards which the parent owns or operates.
Performer in a drama, play, concert, movie, or other entertainment, provided the minor has a theatrical permit issued by the Department.
Work performed for the state or any of its institutions or political subdivisions thereof, or any public body.
Activities performed for a volunteer rescue squad.
When a minor is engaged in occasional work around someone's home, but not in connection with their business, trade or profession, the only restriction on the minor’s hours of work is that the minor cannot work during school hours.
D.
The Department will exempt l4 and l5 year old minors from the hours of work restrictions when employed in sports-attending services. Permissible duties of the sports attendants include: pre- and post-game or practice set-up of balls, items and equipment; supplying and retrieving balls, items, and equipment during a sporting event; clearing the field or court of debris, moisture, etc. during play; providing ice drinks, towels, etc. to players; running errands for trainers, managers, coaches, and players before (pre-game, set-up, and player warm-up), during, and after (post-game activities) a sporting event, and returning and/or storing balls, items and equipment in club house or locker room after a sporting event. For purposes of this exception, impermissible duties include grounds or field maintenance such as grass mowing, spreading or rolling tarpaulins used to cover playing areas, etc.; cleaning and repairing equipment; cleaning locker rooms, showers, lavatories, rest rooms, team vehicles, club houses, dugouts, or similar facilities; loading and unloading balls, items, and equipment from team vehicles before and after a sporting event; doing laundry and working in concession stands or other selling and promotional activities.
E.
High school graduates and expelled students
When minors who are 14 and 15 years of age have graduated from high school, school is no longer "in session.” After graduation, they may not work more than 8 hours per day and not more than 40 hours per week, but they are subject to the remaining hours restrictions.
Child Labor – Page 9
When minors 14 or 15 are subject to an order of the Juvenile Court prohibiting them from attending school, school is no longer "in session" for them and therefore they may work during school hours not more than 8 hours a day, 40 hours a week, but in accordance with the other hours restrictions. Representatives should check with the proper court officials to verify the children have been prohibited from attending school.
When minors 14 and 15 years of age have been expelled from school (which does not include a suspension from school for a limited period), school is no longer "in session" for them and therefore they may work during school hours, not more than 8 hours a day, not more than 40 hours a week, but in accordance with the other hours restrictions for l4 and 15 year olds.
F.
Outside school hours defined.
Outside school hours means such periods as before and after school hours, holidays, summer vacations, weekends, and any other day or part of a day when school is not in session as determined by the local public school district in which the minor resides when employed. Summer school sessions, held in addition to the regularly scheduled school year, are considered to be outside of school hours. Thus, the phrase school hours refers to the hours that the local public school district where the minor resides while employed is in session during the regularly scheduled school year rather than the individual student's attendance requirements or whether the student has been excused from the classroom for a day or part of a day.
In some instances a school may employ a student 14 or 15 years of age to work in the minor’s own school. An example of this would be in the cafeteria during the noon hour or during a period when the student is not in class. Such employment will be considered to be "outside school hours."
When a minor 14 or 15 years of age has a child to support and appropriate state officers, pursuant to state law, have waived school attendance, school is no longer "in session" for that minor. Therefore, the minor may work during school hours, not more than 8 hours a day, 40 hours a week, but in accordance with the remaining hours restrictions for 14 and 15 year olds.
G.
Week defined: "Week" as used by the Virginia Department of Labor and Industry in interpreting and applying the state child labor laws and regulations means a standard calendar week of 12:01 a.m. Sunday through midnight, Saturday.
Child Labor – Page 10
Section 4.00 Time Records
A.
Non-agricultural employment
Must be kept for all minors under 16 years of age.
Must be kept at the site where the minor is employed.
Must show the beginning and ending time of work each day and the time given for a meal or rest period. Meal or rest period time is not counted in the total amount of time worked by the minor.
The records for the last twelve months of work for each minor employee shall be kept for 3 years from the date of the latest work period.
B.
Agricultural employment
Every employer (other than parents or guardians standing in the place of parents employing their own child or a child in their custody) who employs in agriculture any minor under 16 years of age on days when school is in session, or on any day if the minor is employed in a hazardous occupation shall maintain and preserve records containing the following data with respect to each and every such minor so employed:
Name in full.
Place where minor lives while employed. If the minor's permanent address is elsewhere, both addresses must be maintained.
Date of birth.
Child Labor – Page 11
Section 5.00 Prohibited Employment, Non-agricultural
A.
Children under 16 years of age cannot be employed in the following occupations unless they are enrolled in a school work-training program and a work-training certificate has been obtained:
Manufacturing establishment. "To manufacture" means to make anything from raw materials by hand or by machinery or by art. Any occupation involved in the manufacture of a product from the assembling of raw materials for manufacture to the completion of the manufactured article is a part of the manufacturing process, and therefore a manufacturing occupation. All manufacturing is processing, but not all processing is manufacturing. Examples of manufacturing are as follows:
(1) Trimming and examining when they are performed as a part of a manufacturing process.
(2) Assembling of boxes or crates in which goods are to be packed, including making of the lid or cover, is a change in the raw material from which the box or crate is made and constitutes "manufacturing" whether done by hand or machine. However, assembling light-weight flat folded cartons either by stapling with hand stapler machine or by pasting with tape is not manufacturing.
(3) "Lidding" (the operation of fastening down the cover on the filled container) when it is accomplished by use of a power-driven machine.
(4) Stitching of bags containing produce by means of automatic electric sewing machines in fresh fruit and vegetable packing sheds.
(5) If the article is sold to the consumer as a package or carded article, as is often the case with chewing gum or buttons, the packaging or carding of the article into the form in which it is offered to the public is considered an integral part of the manufacturing of the article when the work is performed in the manufacturing establishment.
Processing: "To process" ordinarily is understood to convey the idea of an operation in the course of which goods undergo a change in form or substance, for example:
(1) The cleaning and filleting of fish. (2) The slaughtering of livestock. (3) Dressing of poultry.
Child Labor – Page 12
(4) Cracking of nuts.
(5) Laundering as performed by commercial laundries.
Mechanical establishment.
A "mechanical establishment" is a business having to do with, or having skill in the use of machinery or tools (both manual and power-driven) which usually produce a service. Examples include such businesses as garages, body shops, machine shops, upholsterers, etc.
Commercial cannery.
Operation of any automatic passenger or freight elevator.
Dance studio.
Providing care for resident patients as a laboratory helper, therapist, orderly, or nurses' aid.
In the service of any veterinarian, animal boarding/grooming facility or any establishment in which they would come in contact with animals. Children l4 years of age may be employed in this type of establishment performing office work of a clerical nature in bona fide office rooms; however, they cannot be exposed to X-ray equipment until 18 years of age. A child would have to be 16 years of age to be employed in any occupation that would involve contact with animals.
Warehouse.
Warehouse includes the following: (1) Public warehouse (2) Cold storage warehouses.
(3) Long distance moving and storage establishments. (4) Wholesale houses. (5) Tobacco warehouses.
(6) Warehouses operated either as departments or as separate establishments by retail stores.
(7) Warehouses operated either as separate establishments or departments by factories, canneries, and other manufacturing and processing establishments.
Child Labor – Page 13
A warehouse does not include the following: (1) Fresh fruits and vegetable packing sheds and concentration points. (2) Stock rooms operated by retail stores as an incident to selling and located on the same premises as the retail store.
Planer mill lumber yard where lumber, green or dry, is stacked and stored.
Processing work in any dry cleaner or laundry establishment.
Undertaking establishment or funeral home.
Curb service at a restaurant.
Room service in a hotel or motel.
Brick, coal, or lumber yard.
Ice plant.
Scaffolding work.
Construction trade. If construction is in an on-going stage, children under 16 cannot be employed at the construction site in any capacity even though work for the day has ceased. Minors 14 and 15 years of age can do clean-up work once the construction project is completed. At such time, even though the employer is classified in the construction industry, the employment would not remain under the category of construction trade. Instead, employment would be classified as janitorial as long as the minor is performing allowable duties, such as window washing, removing scrap material, etc.
Outdoor theater.
Cabaret, carnival, fair, floor show, pool hall, club, or roadhouse.
Lifeguard at a beach.
Street trades.
Any occupation or duties not specifically authorized by Federal Regulation.
Child Labor – Page 14
Section 6.00 Hazardous Employment, Non-agricultural
A.
Minors under the age of 18 years of age cannot be employed in the following occupations:
Any occupation that exposes them to a recognized hazard capable of causing injury or death.
Power-driven grinding, abrasive, polishing, or buffing machines.
Preparation of compositions using poisonous or dangerous chemicals.
Manufacture of paints, colors, white lead, brick tile or kindred products.
Places where goods of alcoholic content are manufactured, bottled, or sold for consumption on the premises, except in places where the sale of alcoholic beverages is merely incidental to the main business actually conducted, or to deliver alcoholic goods.
The following occupations declared hazardous by the Commissioner of Labor and Industry: (1) Manufacturing or storage occupations involving explosives. (2) Logging and sawmilling occupations. (3) Power-driven woodworking machine occupations. (4) Occupations involving exposure to radioactive substances and to ionizing radiations. (5) Power-driven hoisting apparatus occupations. (6) Power-driven metal forming, punching, and shearing machine occupations. (7) Occupations in connection with any mining operation. (8) Occupations involving slaughtering, meatpacking, processing, or rendering. (9) Power-driven bakery machine occupations. (10) Power-driven paper products machine occupations.
Child Labor – Page 15
(11) Occupations involved in the manufacture of brick, tile, and kindred products.
(12) Occupations involved in the power-driven operation of circular saws, band saws, and guillotine shears.
(13) Occupations involved in wrecking, demolition, and shipbreaking operations.
(14) Occupations in roofing operations. (15) Occupations in excavating operations. (16) Fire fighting.
Note: Minors 16 years of age or over enrolled in a bona fide school work-training program or apprenticeship program may be employed in Hazardous Items Nos. 4, 7, 9, 10, 11, 13, and 15.
Child Labor – Page 16
Section 7.00 Permissible and Hazardous Employment – Agricultural
A.
The following are occupations permitted for minors under 16 years of age employed on farms, in gardens or in orchards:
Handling chemical pesticides and fertilizers not included in Hazardous Item # 8 of subsection B below.
Loading or unloading trucks.
Operating garden-type tractors.
Picking vegetables and berries and placing them on conveyors or in containers.
Working with farm animals, except work with certain breeding stock in confined areas, including showing any animal at livestock shows, fairs, exhibits or similar activities when not taking place on a farm.
Hand planting and cultivation.
Raising and caring for poultry.
Milking cows.
Processing and storing milk and dairy products.
Detasseling corn.
Cleaning barns, equipment storage buildings, chicken coops, etc.
Mowing lawns.
Riding, driving, or exercising horses.
Picking cotton.
Handling of irrigation pipes.
Harvesting and storing tobacco.
Riding on transplanters.
B.
The following are occupations considered hazardous and not permitted for children under 16 years of age on farms, in gardens and in orchards:
Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting Child Labor – Page 17
an implement or any of its parts to or from such a tractor.
(1) Farm tractors overturn easily and the operator or passenger may be seriously injured. Serious injuries are complicated if the accident occurs in an isolated area and is not discovered quickly.
(2) The rotating drive mechanisms of implements or power-take-off drives inflict serious injuries if parts of the body or clothing come in contact with the exposed drive shaft or moving parts.
(3) Persons under 16 may still operate garden-type tractors, which are free from the extensive hazards associated with large, heavy-duty equipment.
Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
(1) Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, or mobile pea viner.
(a) These machines use rotary gears, revolving shafts, driving chains, belts, augers, conveyor belts and chains, knives, blowers, levers, and hydraulic pistons to grasp, cut, pound, grind, convey, compress, push, or pull material. The farm worker sometimes comes in contact with moving parts and is seriously injured when he tries to unclog, repair, or adjust the machine when the motor is running.
(2) Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer.
(a) These machines, except for some that are fed manually, are similar in construction and operation to those described above, and involve the same hazards. There is an additional danger that if a part of the body is caught by a turning auger, amputation is almost unavoidable.
(b) Persons under 16 may move the crop to the person feeding the machine and remove the finished product from the area; they may load and unload material from other types of conveyors, such as belt, bucket, or chain.
(3) Power post-hole digger, power post driver, or non-walking type rotary tiller.
(a) The hazard of the post-hole digger is the danger of becoming Child Labor – Page 18
entangled with the rotating drive; with the power post-driver, the hazard is the possibility of being struck by the descending ram.
(b) Persons under 16 may set posts in holes, tamp the earth, attach and stretch wire, install gates, and repair fences.
Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines: (1) Earthmoving equipment. (2) Forklift. (3) Potato combine. (4) Chain saw.
Working on a farm in a yard, pen, or stall occupied by
(1) A bull, boar, or stud horse maintained for breeding purposes.
(2) A sow with suckling pigs, or cow with newborn calf (with umbilical cord present).
(a) This does not prohibit work with these animals or any animals in an open area. It does not prohibit work with beef or range bulls and cattle, dairy cattle, or breeding stock on the range.
Working from a ladder at a height of over 20 feet for purposes such as pruning trees, picking fruit, etc.
(1) This does not prohibit using ladders to reach a work site above 20 feet, as long as the work is not done from a ladder or scaffold.
Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper.
Working inside
(1) A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere.
(2) An upright silo within two weeks after silage has been added or when a top unloading device is in operating position.
Child Labor – Page 19
(3) A manure pit. (4) A horizontal silo while operating a tractor for packing purposes. (a) When oxygen is replaced by another gas or consumed by fermentation, anyone entering these storage areas is in danger of asphyxiation.
(b) If the top unloading device is in operating position in the silo, a person may become entangled in its cutting and tearing mechanism and be injured seriously.
(c) Employees under 16 may work inside the non-gas-tight type silo while the unloading device is in a raised position, and they may also operate this device from outside the silo.
(d) The hazards involved in operating a tractor for packing purposes in a horizontal silo is the danger of overturning.
Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the word "poison" and the "skull and crossbones" on the label; or Category II of toxicity, identified by the word "warning" on the label.
(1) Many agricultural chemicals present serious health hazards. Some have a corrosive effect on body tissue. Some affect the central nervous system, causing respiratory failures and many cause death by the accumulation of even minute quantities over a prolonged period.
(2) The hazards involved in the job of flagman are that he stands in the line of flight to direct the pilot and also because of the possibility of contamination from the chemical being applied.
(3) Minors under 16 may handle and apply fertilizers or chemicals that are not labeled as indicated above.
Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord.
Transporting, transferring, or applying anhydrous ammonia Child Labor – Page 20
Section 8.00 Exemptions Generally
A.
Nothing in Virginia's Child Labor Laws and regulations except hazardous occupations (§40.1-100(A)); theatrical performers, (§§ 40.1-101 and 40.1-102); and cruelty and injury to children, (§ 40.1-103) shall apply to minors employed in the following:
A child engaged in domestic work when such work is performed in connection with the child's own home and directly for his parent or a person standing in place of the parent. The word "parent" or a "person standing in place of a parent" includes natural parents, or any other person where the relationship between that person and a child is such that the person may be said to stand in place of a parent. For example, one who takes a child into his or her home and treats it as a member of his or her own family, educating and supporting the child as if it were his or her own, is generally said to stand in "place of a parent."
A child employed in occasional work performed outside school hours where such work is in connection with the employer's home but not in connection with the employer's business, trade, or profession.
A child 12 or 13 years of age employed outside school hours on farms, in orchards or in gardens with the consent of the parent or a person standing in place of the parent.
A child between the ages of 12 and 18 employed as a page or clerk for either the House of Delegates or the Senate of Virginia.
A child participating in the activities of a volunteer rescue squad.
A child under 16 years of age employed by his or her parent in an occupation other than manufacturing or one declared hazardous by code or regulation. The exception applies only when the parent is the sole employer of the minor. If the parent is a partner in a partnership or an officer of a corporation, the parental exemption does not apply unless the parents are the only members of a partnership or the sole owners of the corporation.
B.
Nothing in Virginia's Child Labor Laws or regulations, except theatrical performers, (§§ 40.1-101 and 40.1-102); and cruelty and injuries to children, (§ 40.1-103), shall apply to a child employed by the parent or a person standing in place of the parent on farms, in orchards, or in gardens owned or operated by such parent or person.
The parental exemption applies to the minor's natural parent or to a "person standing in the place of his parent" so long as the employment is on a farm owned or operated by such parent or person.
- "Owned by" the parent or person standing in the place of the parent includes his part ownership as a partner in a partnership or as an officer of a corporation which Child Labor – Page 21
owns the farm if his ownership interest in the partnership or corporation is substantial.
- “Operated by” the parent or person standing in place of the parent means that he exerts active and direct control over the operation of the farm or ranch by making day to day decisions affecting basic income, work assignments, hiring and firing of employees and exercising direct supervision of the farm or ranch work. A ranch manager, therefore, who meets these criteria could employ his own children under 16 on the ranch he operated without regard to the hazardous occupations.
Child Labor – Page 22
Section 9.00 Penalties
A.
Anyone who illegally employs a minor may be subject to a civil money penalty of up to $10,000 for each violation that results from the employment of a child who is seriously injured or dies in the course of the employment, and up to $1,000 for every other violation.
When a civil money penalty is assessed against an employer, the employer may within 21 days after receipt of the notice of such penalty request an informal conference, if not the violation and penalty will become a final order of the Commissioner and not subject to review by any court or agency except upon a showing of good cause.
B.
Two sections of Title 40.1, Chapter 5, Child Labor Laws of Virginia, provide criminal penalties.
The use of children for sexually explicit visual material is prohibited. A violation is a Class 6 felony. Section 40.1-100.2 of the Code of Virginia.
Employment of a child in a street or public place, including the sales of candy, books, and subscription contracts for periodicals without securing a permit from the Department of Labor and Industry or employing a child less than 16 years of age in such an occupation is a Class 1 misdemeanor. Section 40.1-112 of the Code of Virginia.
Child Labor – Page 23
Section 10.00 Instructions for Completing Child Labor Civil Money Penalty Report
A.
Completion of Form
In the upper left blocks of the form enter
(1) Employer: same name as appears on the Inspection Reports, Complaint Reports, and all other forms --- the trade name of the employer. (2) Address: street address of the establishment investigated.
At the top of the columns marked "#1 through #5," place the initials of the child for whom a Civil Money Penalty Report is being calculated. Even though the bottom of the column is "0," the calculation must be shown. Please make sure the initials match the minor's name referenced in the narrative and on the interview and records review sheets.
Use of "VIOLATION 1st or 2nd." All first investigations of an establishment use "1st" column. All subsequent investigations resulting from child labor violations cited on a previous investigation, use column "2nd." Only cite a 2nd offense violation amount for the same violation of the Child Labor Laws cited during a previous investigation. Example: If on a prior investigation, the same employer was cited for hours of work violations and during the subsequent investigation, you find the employer in violation of hours of work, records, and failure to have minors secure work permits, you would cite a 2nd offense amount for the hours of work violations, but a 1st offense amount for the records and permit certification violations.
B.
Section I WORK VIOLATIONS. THIS SECTION IS USED FOR CITING CHILD
LABOR VIOLATIONS.
Hours. Any violation of hours requirements set forth in Chapter 5 of Title 40.l, Code of Virginia, is cited here. Cite $300 for 1st offense; cite $600 for 2nd offense and subsequent offenses. If child found in violation of more than one hours requirement, only one penalty amount ($300 or $600) should be cited here.
Children under 14 years of age would be cited for hours violations if they worked in excess of the hours requirements for 14 and 15 year old children.
Occupation. Any violation where a child is found employed in an occupation not permissible under the Child Labor Laws of Virginia or regulations adopted pursuant thereto.
(1) Under 14. Any child under 14 years of age employed in an illegal occupation, cite $300 for 1st violation; cite $600 for 2nd and subsequent violations.
Child Labor – Page 24
(2) Under 16 in prohibited occupation. Applicable to any child who is underage for prohibited occupations requiring a 14- 16 year-old-age limit (does not include 16 year old requirement for hazardous agricultural employment). If a 1st violation, cite $200 if no injury occurred, $400 if injury but no significant injury occurred, and $1000 if fatality or significant injury occurred. If 2nd or subsequent violation, cite $400 if no injury occurred, $600 if injury but no significant injury occurred, and $1000 if fatality or significant injury occurred.
(3) Under 16/18 in hazardous occupation or using hazardous equipment.
Any child that is not the minimum age (16 or 18) for hazardous agricultural employment or using hazardous farm equipment or a child under 18 employed in a hazardous non-agricultural occupation or using hazardous equipment are cited here. If minor was under 14, it is appropriate to cite violations of B.2(1) as well as this section. If 1st violation, cite $400 if no injury occurred, $600 if injury but not significant injury occurred, and $10,000 if fatality or significant injury occurred. If 2nd or subsequent violation, cite $600 if no injury occurred, $800 if injury but no significant injury occurred, and $10,000 if fatality or significant injury occurred.
Note: For the purpose of this section, significant injury means if there is a permanent disability suffered. For example, loss of finger, loss of limb, permanent vision damage, permanent nerve damage, permanent burn scars, etc.
(4) Subjected to recognized hazard. Before citing a penalty for violation of § 40.1-100.1, you should discuss the case with your Supervisor, who will discuss it with the Central Office. If 1st violation, cite $400 if no injury occurred, cite $600 if injury but not significant injury occurred, and $10,000 if fatality or significant injury occurred. If 2nd or subsequent violation, cite $600 if no injury occurred, $800 if injury but no significant injury occurred, and $10,000 if fatality or significant injury occurred.
Total the amount of penalty for each child and place that amount in "Section I Subtotal."
C.
SECTION II 50% REDUCTION IF NONE OF THE FOLLOWING OCCURRED: If any of the (1) through (4) subsection tests are not met, the 50% reduction is eliminated. The Representative must find evidence that one of the four tests is not met in order to void the reduction. Place either "Yes" or "No" by each test. Any "Yes" voids the reduction.
Injury/potential injury. Employer fails this test if child was employed in an illegal occupation or was using hazardous equipment and injury occurred or potential for injury existed.
Child Labor – Page 25
Repeat violation. If this investigation is with the same employer (corporation) you've cited any violations of Chapter 5 of Title 40.1, Code of Virginia, or regulations adopted pursuant thereto in the past, the test is not met.
Child under 14 employed. Employer fails this test if any violation is found where the child involved is under 14 years of age.
Hours substantially exceeded. Employer fails this test if minor worked three days or more and either one of the following has occurred:
(1) One hour or more prior to the 7 a.m. beginning or 7 and 9 p.m. ending limits.
(2) One hour or more over the daily limits. (3) Six hours or more over the weekly limit. (4) No meal or rest period given. (5) Working illegally during school hours.
If the penalty amount is not reduced because one of the 1 through 4 tests is not met, bring down the "Section I Subtotal" to "Section II Subtotal." If the penalty is reduced because all of (1) through (4) tests are met, reduce the "Section I Subtotal" for the appropriate child by 50% and place the reduced figure in "Section II Subtotal" space for each child.
D.
Section III FAILURE TO OBTAIN PROPER CERTIFICATION. This section is used to cite employers for failure to have an Employment Certificate, Work-Training Agreement, or Theatrical Permit whichever is applicable. If proper certification was not obtained, cite $300 for 1st offense and $600 for each 2nd and subsequent offense. (If the child is under 14 which is the minimum age for securing an Employment Certificate, no penalty should be assessed. However, if the child turns 14 years of age and remains in the employer’s employment and still does not secure an Employment Certificate, a penalty should be assessed for failure to obtain proper certification.)
If a penalty is cited in "Section III," place the penalty in the column for each child cited.
Add these penalty amounts to the amounts of the "Section II Subtotal" line and enter the totals on the "Section III Subtotal" line.
E.
Section IV. REDUCTION. If the total number of employees for the establishment is between 1 and 4, reduce the Section III Subtotal by 50%; between 5 and 10, reduce the penalty by 40%; between 11 and 25 employees, reduce the amount by 30%; between 26 and 60 employees, reduce the amount by 20%; between 61 and 100 employees, reduce the amount by 10%; or 100 or more employees, no reduction is to be made in the Section III Subtotal amount. Enter the appropriate reduction amount here, if any, and draw a line under the reduction test which is met. Place the remaining penalty amount on the Child Labor – Page 26
"Section IV Subtotal" line. If there is no reduction, merely bring the "III" totals down to the "IV" totals.
Note: The number of employees is to be based on the number of employees the employer has on the date the Representative conducts the investigation.
F.
Section V. FAILURE TO KEEP PROPER TIME RECORDS. This section is used for citing any violation of § 40.1-81.1 of the Child Labor Laws, or regulations adopted pursuant to § 40.1-6(3) of the Code of Virginia. If 1st violation, cite $300 if the employer has no records, $75 if the records are insufficient, and $50 if the records are not on the premises. If 2nd or subsequent violation, cite $500 if the employer has no records, $250 if records are insufficient, and $100 if records are not on the premises. Total the amounts on the "Section IV Subtotal line and the "Section V FAILURE TO KEEP PROPER TIME RECORDS" line and bring the totals down to the "Total Civil Money Penalty" line.
G.
Finalization of Civil Money Penalty Form
Total all children cited on this form and place the number of children in "Number of Children illegally employed" at the top right of form.
Total the amounts listed in the "Total Civil Money Penalty" line and place the grand total in "Recommended penalty amount" at the top right.
Put the Representative's name in the block in the lower left corner. If more than one Representative works on this investigation, all names should appear here.
Child Labor – Page 27
Section 11.00 Application
A.
Child labor complaints can originate in the following ways
Receipt of a formal or anonymous complaint by phone, by walk-in, or other method where no written paperwork is furnished.
First Report of Injury form from the Industrial Commission.
Violations noted as a result of a routine inspection.
Other referrals.
B.
Conducting interviews during a child labor investigation.
If an investigation is conducted as a result of a formal or anonymous complaint, the representative will interview the complainant if the complainant is known, interview management, and review records for all currently employed minors to determine if violations are noted. If use of hazardous equipment and/or prohibited occupations is alleged or suspected, all currently employed minors may be interviewed. If records are not maintained for 14 and 15 year olds, interviews may be necessary to determine if work hours are being violated. Former employees will not be interviewed unless their testimony is needed to substantiate violations cited for current employees. Penalties will be calculated based on all violations cited.
If an investigation is conducted as a result of an injury report, the representative may interview management, interview all currently employed minors, interview the injured party, and review necessary records of the injured and currently employed minors to determine if violations are noted. The OSHA 200 log may be reviewed, if available, to determine if other injuries occurred during the last 12 months. The injured party is the only former employee to be interviewed unless the testimony of other former employees is needed to substantiate violations cited in relation to the injury or for current employees. Penalties will be calculated based on all violations cited.
When a routine inspection is conducted, the representative will review records for all currently employed minors, observe the work being conducted by minors, and thoroughly instruct the employer about Virginia's labor laws. Employee interviews will not be conducted. All violations observed during the inspection will be noted. Penalties will be calculated based on all violations cited.
Note: If an employer indicates during the inspection that minors have used hazardous equipment due to the employer's lack of knowledge of the law, but the representative does not observe a violation, a warning will be issued and a follow-up inspection may be scheduled within 3 months.
Child Labor – Page 28
If a minor is observed operating a hazardous piece of equipment, a penalty will be calculated for that incidence only. If the employer has other minors employed who he admits have operated this equipment, a follow-up inspection should be scheduled within 3 months. If violations are noted on the follow-up visit, a full investigation to include interviews of all minors would be conducted. Penalties will be calculated on all violations cited.
C.
Citations
-
Penalty Assessment: The notification is sent to the employer by both regular first class and certified mail.
-
Final Order: The Commissioner shall notify any employer who he alleges has violated any provision of this section by certified mail or overnight delivery service. Such notice shall contain a description of the alleged violation. Within 21 days of receipt of notice of the alleged violation, the employer may request an informal conference regarding such violation with the Commissioner. If the employer fails to contest the violation by requesting such an informal conference within 21 days following receipt of the notice of the alleged violation, the violation and proposed penalty will become a final order of the Commissioner and not subject to review by any court or agency except upon a showing of good cause. Such informal conference shall result in a decision by the Commissioner that will be appealable to the appropriate circuit court.
The Department shall send a copy of the Commissioner's decision to the employer by certified mail or overnight delivery service. The employer may file a notice of an appeal only within 30 days from the receipt of the decision. The appeal shall be on the agency record. With respect to matters of law, the burden shall be on the party seeking review to designate and demonstrate an error of law subject to review by the court. With respect to issues of fact, the duty of the court shall be limited to ascertaining whether there was substantial evidence in the record to reasonably support the Commissioner's findings of fact.
Occupational Exposure to Isocyanates ProgramDoc ID: 14-415
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DOLI Virginia Occupational Safety & Health VOSH
VOSH PROGRAM DIRECTIVE: 14-415 ISSUED: 15 December 2013
SUBJECT: National Emphasis Program – Occupational Exposure to Isocyanates
Purpose This directive describes policies and procedures for VOSH personnel for implementing a National Emphasis Program to identify and reduce or eliminate the incidence of adverse health effects associated with occupational exposure to isocyanates.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This directive applies VOSH-wide, and specifically to Occupational Health Compliance and Consultation Services personnel.
Reference OSHA Instruction CPL 03-00-017 (20 June 2013)
Cancellation VOSH Program Directive 14-412 (01 November 2005)
Effective Date 15 October 2013
Action Directors and Managers shall ensure that VOSH personnel understand and enforce the requirements of this directive.
Expiration Date Not Applicable.
William F. Burge Acting Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & Norfolk Area Offices Legal Support & IMIS Support Staffs
1
[TABLE 1-1] | | DOLI | Virginia Occupational Safety & Health | VOS | |
DOLI | | DOLI | | | VOS | H
[/TABLE]
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When the guidelines, as set forth in this Program Directive, are applied to the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Assistant Commissioner
Area Director Regional Director VOSH Program Director
Area Office/Regional Office Regional Office
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO
and/or Industrial Hygienist
OSHA Field Operations Manual (FOM) VOSH Field Operation Manual (FOM)
OSHA Directives: VOSH Program Directives
CPL 02-00-150, Field Operations VOSH PD 02-001G, VOSH Field Operations Manual (FOM) (4/22/11) Manual (FOM) (10/1/13)
CPL 02-00-025 (CPL 2.25I), Scheduling VOSH 02-051A, Scheduling System for System for Programmed Inspections (1/4/95) Programmed General Inspections (2/22/90)
CPL 02-00-051I (CPL 2.0.51J), Enforcement Exemption VOSH PD 02-003M, VOSH Procedures to comply and Limitations under the Appropriations Act (5/28/98) with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act… (6/1/13)
CPL 02-00-135, Recordkeeping Policies and Procedures VOSH 09-104, Recordkeeping Policies and Manual (12/30/04) Procedures Manual (RKM) (8/1/12)
2
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TED 01-00-015, OSHA Technical Manual (1/20/99) VOSH PD 09-052, OSHA Technical Manual (8/1/12)
CPL 02-02-120 (CPL 2-0.120), Inspection Procedures VOSH PD 02-411, Inspection Procedures for the for the Respiratory Protection Standard (9/25/88) Respiratory Protection Standard, 1910.134 (12/15/98)
CPL 02-02-038 (CPL 2-2.38D), Inspection Procedures VOSH PD 02-060A, Inspection Procedures for for the Hazard communication Standard (3/20/98) the Hazard Communication Standard (9/15/98)
CPL 02-01-050, 29 CFR Part 1910, Subpart I, Enforcement VOSH PD 02-243A, Part 1910, Subpart I, Guidance for Personal Protective Equipment in General Enforcement Guidance for Personal Protective Industry (2/10/11) Equipment in General Industry (1/15/12)
CPL 02-00-141, Inspection Scheduling for Construction VOSH PD 02-105, Inspection Scheduling for (1/14/06) Construction (7/1/07)
CPL 02-02-072, Rules of Agency Practice and Procedure VOSH PD 02-022A, Rules of Agency Practice and Concerning OSHA Access to Employee Medical Records Procedure Concerning OSHA Access to Employee (8/22/07) Medical Records (11/1/09)
CPL 02-02-070, Inspection Procedures for Occupational VOSH PD 02-415, Inspection Procedures for Exposure to Methylene Chloride Final Rule 29 CFR Part Occupational Exposure to Methylene Chloride, 1910.1052, 29 CFR Part 1915.1052 and 29 CFR Part Final Rule, 1910.1052, 1925.1052 and 1926.1152 1926.1152 (12/14/01) (2/1/02)
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DIRECTIVE NUMBER: CPL 03-00-017 EFFECTIVE DATE: June 20, 2013 SUBJECT: National Emphasis Program – Occupational Exposure to Isocyanates
ABSTRACT
Purpose: This instruction describes policies and procedures for implementing a National Emphasis Program to identify and reduce or eliminate the incidence of adverse health effects associated with occupational exposure to isocyanates.
Scope: This instruction applies OSHA-wide.
References: OSHA Instruction CPL 02-00-150, Field Operations Manual (FOM), April 22, 2011;
OSHA Notice 13-01 (CPL 02), Site-Specific Targeting 2012 (SST-12),
January 4, 2013.
Cancellations: This instruction supersedes all Regional and Local Emphasis Programs specifically dealing with isocyanates.
State Impact: Notice of intent and adoption required. See Section VII.
Action Offices: OSHA National, Regional and Area Offices, State Plan and State Consultation Offices.
Originating Office: Office of Health Enforcement.
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Contact: Directorate of Enforcement Programs Office of Health Enforcement 200 Constitution Avenue NW, Room N-3119 Washington, DC 20210 (202) 693-2190
By and Under the Authority of
David Michaels, PhD, MPH Assistant Secretary
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Executive Summary
This National Emphasis Program (NEP) was developed to focus OSHA resources on the workplace health issue of occupational exposure to isocyanates. This instruction combines enforcement and outreach efforts to raise awareness of employers, workers, and safety and health professionals of the serious health effects associated with occupational exposure to isocyanates. The health effects of occupational exposure to isocyanates include occupational asthma, irritation of the skin (dermatitis) and mucous membranes (eyes, nose, and throat), hypersensitivity pneumonitis, and chest tightness. Isocyanates include compounds also classified as potential human carcinogens and known to cause cancer in animals.
Workers in a wide range of industries and occupations are exposed to at least one of the numerous isocyanates known to be associated with work-related asthma. Occupational factors are associated with at least 15 percent of all adult onset asthma cases in the United States. Occupational asthma is an illness characterized by intermittent breathing difficulty including chest tightness, wheezing, cough and shortness of breath. It is frequently serious and sometimes fatal. Jobs that may involve exposure to
isocyanates include painting, blowing foam insulation, and the manufacture and thermal degradation of many polyurethane products such as polyurethane foam, insulation materials, surface coatings, car seats, furniture, foam mattresses, under-carpet padding, packaging materials, shoes, laminated fabrics, polyurethane rubber, and adhesives. This instruction sets forth a site selection system that targets multiple industries and will focus on evaluating inhalation, dermal and other routes of occupational exposure to isocyanates. This instruction supersedes all Regional and Local Emphasis Programs specifically addressing occupational exposure to isocyanates.
Significant Changes
This instruction describes a new initiative by the Occupational Safety and Health Administration.
Abstract - 3
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Table of Contents
I. Purpose ..................................................................................................................................................... 1
II. Scope ........................................................................................................................................................ 1 III. References ................................................................................................................................................ 1 IV. Cancellations ............................................................................................................................................. 2
V. Expiration .................................................................................................................................................. 2 VI. Consultation Programs ............................................................................................................................. 2
VII. Application ................................................................................................................................................ 2 VIII. Background ................................................................................................................................................ 2
IX. Program Procedures ................................................................................................................................. 4 A. Targeting ............................................................................................................................................... 4 B. Identifying Facilities for Inspection ...................................................................................................... 4
C. Site Selection ........................................................................................................................................ 5 D. Inspection Scheduling .......................................................................................................................... 7
E. Complaints and Referrals ...................................................................................................................... 7 F. Cooperative Programs .......................................................................................................................... 8 G. Strategic Partnerships [RESERVED] ...................................................................................................... 8
H. Expanding the Scope of the Inspection ................................................................................................ 8 X. Inspection Procedures .............................................................................................................................. 9
A. Opening Conference ............................................................................................................................. 9 B. Recordkeeping ...................................................................................................................................... 9
C. Exposure Assessments ........................................................................................................................ 10 D. Citation Guidelines ............................................................................................................................. 12 E. Personal Protective Equipment (PPE) ................................................................................................. 14
F. Hazard Communication ...................................................................................................................... 15 G. Housekeeping ..................................................................................................................................... 15
H. Flammable and Combustible Products .............................................................................................. 15 XI. Follow-up Inspections ............................................................................................................................. 16
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XII. Hazard Alert Letter (HAL) - Follow-up .................................................................................................... 16
A. HAL Follow-up .................................................................................................................................. 16 B. Employer’s HAL Progress ................................................................................................................. 16
XIII. VOSH Integrated Management Information System (IMIS) Coding ...................................................... 17 XIV. Outreach ................................................................................................................................................ 17
C. Offices ............................................................................................................................................... 17 B. Online Materials ............................................................................................................................... 18 XV. Coordination .......................................................................................................................................... 18
XVI. Program Evaluation ............................................................................................................................... 18 Appendix A. Industries Where Isocyanate Exposures Are Known or Likely to Occur .................................. A-1
Appendix B. Isocyanate Sampling, Field Extraction, and Sample Shipment Procedures .............................. B-1 Appendix C. Health Surveillance Form (Non-Mandatory) – Isocyanate Exposure ........................................ C-1 Appendix D. Sample Isocyanate Hazard Alert Letter .................................................................................... D-1
Appendix E. Publications and Resources ...................................................................................................... E-1 Appendix F. Sample General Duty Clause Citation Language ....................................................................... F-1
Appendix G. General Guidance for Employers on Personal Protective Equipment (including Respiratory Protection) for Worker Exposures to Isocyanates ........................................................................................ G-1
Appendix H. General Guidance for Employers on Medical Surveillance Program Information for Worker Exposures to Isocyanates................................................................................................................. H-1
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I. Purpose.
This instruction describes policies and procedures for implementing a National Emphasis Program to identify and reduce or eliminate the incidence of adverse health effects associated with occupational exposure to isocyanates.
II. Scope.
This instruction applies OSHA-wide.
III. References.
A. OSHA Instruction CPL 02-00-150, Field Operations Manual (FOM), April 22, 2011, and subsequent changes.
B. OSHA Notice 13-01 (CPL 02), Site-Specific Targeting 2012 (SST-12), January 4, 2013.
C. OSHA Instruction CPL 02-00-025 (CPL 2.25I), Scheduling System for Programmed Inspections, January 4, 1995.
D. OSHA Instruction CPL 02-00-051(CPL 2-0.51J), Enforcement Exemption and Limitations under the Appropriations Act, May 28, 1998.
E. OSHA Instruction CSP 03-02-002, OSHA Strategic Partnership Program for Worker Safety and Health, December 9, 2004.
F. OSHA Instruction CPL 02-00-135, Recordkeeping Policies and Procedures Manual, December 30, 2004.
G. OSHA Instruction TED 01-00-015, OSHA Technical Manual, January 20, 1999.
H. OSHA Instruction CPL 02-00-120 (CPL 2-0.120), Inspection Procedures for the Respiratory Protection Standard, September 25, 1988.
I. OSHA Instruction CPL 02-02-038 (CPL 2-2.38D), Inspection Procedures for the Hazard Communication Standard, March 20, 1998.
J. OSHA Instruction CPL 02-01-050, 29 CFR Part 1910, Subpart I, Enforcement Guidance for Personal Protective Equipment in General Industry, February 10, 2011.
K. OSHA Safety and Health Topics, OSHA Sampling and Analytical Methods.
L. OSHA Instruction CPL 02-00-141, Inspection Scheduling for Construction, July 14, 2006.
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M. OSHA Instruction CPL 02-02-072, Rules of agency practice and procedure concerning OSHA access to employee medical records, August 22, 2007.
N. OSHA Instruction CPL 02-02-070, Inspection Procedures for Occupational Exposure to Methylene Chloride Final Rule 29 CFR Part 1910.1052, 29 CFR Part 1915.1052 and 29 CFR Part 1926.1152, December 14, 2001.
O. OSHA Instruction ADM 04-00-001, OSHA Field Safety and Health Manual, May23, 2011.
IV. Cancellations.
Not Applicable.
V. Expiration.
This instruction will expire three (3) years from the issuance date.
VI. Consultation Programs.
When appropriate, consultation programs are encouraged to develop their own strategic approaches for reducing the health effects associated with occupational exposure to isocyanates covered by this NEP.
VII. Application.
This directive applies to all workplaces (General Industry, Construction, and Maritime) under VOSH’s jurisdiction.
VIII. Background.
Exposures to isocyanates can have adverse health effects for workers. Organic isocyanates are chemicals which contain one or more isocyanate groups (-NCO) attached to an organic group. The
general term “isocyanates” refers to all chemicals with two or more isocyanate groups such as diisocyanates or polyisocyanates. Respiratory disease among workers exposed to isocyanates has been recognized since the 1950s. Exposure limits have been established in the U.S. and other countries for both ceiling and TWA exposures. Isocyanates include compounds classified as potential human carcinogens and known to cause cancer in animals.
“The most widely used compounds are diisocyanates, which contain two isocyanate groups, and polyisocyanates, which are usually derived from diisocyanates and may contain several isocyanate groups. The most commonly used diisocyanates include methylenebis (phenyl isocyanate) (MDI), toluene diisocyanate (TDI), and hexamethylene diisocyanate (HDI). Other diisocyanates include naphthalene diisocyanate (NDI), methylene bis-cyclohexylisocyanate
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(HMDI) (hydrogenated MDI), and isophorone diisocyanate (IPDI). Examples of widely used 1 polyisocyanates include HDI biuret andHDI isocyanurate.” Isocyanates are powerful irritants to the mucous membranes of the eyes, nose and throat, and gastrointestinal and respiratory tracts. Irritation may be severe enough to produce bronchitis with bronchospasm. Hypersensitivity pneumonitis (inflammation in the lungs caused by exposure to an allergen) has been reported in isocyanate-exposed workers. Symptoms can continue for months or years after exposure has ceased. Deaths have occurred due to both asthma and 2 hypersensitivity pneumonitis from isocyanate exposure.
Some isocyanates are also allergic sensitizers. Cross-sensitization, in which a worker is exposed to one isocyanate but reacts adversely to others as well, can occur. Studies indicate that dermal exposure is a significant cause of respiratory sensitization. Thus, workers with skin contact to isocyanates may develop sensitivity, resulting in asthma attacks with subsequent exposures.
Sensitization can occur at very low levels of exposure. Dermal sensitization may also result in
rash, itching, hives and swelling of the extremities. Because isocyanates are not relatively water soluble, they cannot be easily washed off skin or clothing.
Isocyanates are widely used in the manufacture of flexible and rigid foams, fibers, coatings such as paints and varnishes, and elastomers, and are increasingly used in the automobile industry, auto body repair, and building insulation materials. In addition, spray-on polyurethane products containing isocyanates have been developed for a wide range of retail, commercial, and industrial uses to protect cement, wood, fiberglass, steel, and aluminum, including protective coatings for truck beds, trailers, boats, foundations, and decks.
The National Institute for Occupational Safety and Health (NIOSH) states that “Preventing exposure to isocyanates is a critical step in eliminating the health hazard. Engineering controls such as closed systems and ventilation should be the principal method for minimizing isocyanate exposure in the workplace. Other controls, such as worker isolation and personal protective clothing and equipment may also be necessary. Early recognition of sensitization and prompt and strict elimination of exposures is essential to reduce the risk of long-term or 3 permanent respiratory problems for workers who have become sensitized.” The goal of this directive is to reduce employee exposure to isocyanates shown to potentially cause work-related asthma, sensitization (respiratory, skin) and other occupational health
effects. This goal will be accomplished by a combined effort of inspection targeting, outreach to employers, and compliance assistance. By performing activities (enforcement and outreach) related to this hazard, OSHA aims to raise awareness of the occurrence and severity of occupational health hazards related to or associated with isocyanates in all industry sectors.
1 NIOSH Safety and Health Topic: Isocyanates 2 http://www.cdc.gov/niosh/docs/96-111/3 http://www.cdc.gov/niosh/topics/isocyanates/
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IX. Program Procedures.
A. Targeting.
Inspections under this NEP will focus on general industry, construction and maritime industries where exposures to isocyanates are known or are likely to occur.
Establishments with fewer than 10 workers shall be included in this NEP. Additionally, federal agencies that are subject to inspection and have employees exposed to hazards covered by this NEP shall be included.
B. Identifying Facilities for Inspection.
Exposures to isocyanates are found in many industries, but are not necessarily found in all establishments within those industries. OSHA reviewed extensive information to develop primary, secondary and construction targeting lists for industries with SIC/NAICS codes indicating potential isocyanates exposures.
Appendix A contains a primary list of general industry and maritime sectors (by SIC/NAICS) where overexposures to isocyanates are known to occur, and exposures have been demonstrated to be above an OSHA permissible exposure limit or an occupational 4 exposure limit (OEL), and workers have exhibited illnesses associated with occupational exposure to isocyanates. A secondary list includes other industries where exposures to isocyanates are also known to occur but where worker overexposures to isocyanates may not have been documented. See Appendix A of this instruction for the primary and secondary lists of industries (by SIC/NAICS code).
Appendix A also contains a list of construction industries (by SIC/NAICS code) where
worker exposure to isocyanates are likely to occur. Similar to those contained on the secondary list, not all establishments in the listed construction industries have documented worker overexposures to isocyanates.
If a Regional Office knows of industries not included in Appendix A that have demonstrated a pattern of isocyanate exposures, it should notify the Director of Occupational Health Compliance for possible inclusion in the Appendix. The rationale for including the industry shall be documented, and may include information such as, but not limited to:
- A history of previous isocyanate overexposures in the industry, based on OSHA inspection histories;
________ 4 An occupational exposure limit (OEL) is a non-regulatory established airborne exposure limit. An OEL includes National Institute for Occupational Safety and Health (NIOSH) Recommended Exposure Limits (RELS) and American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Values® (TLVs®).
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- Local knowledge of overexposures to isocyanates based on objective illness,
exposure, or public health data from sources including, but not limited to, the U.S. Environmental Protection Agency’s Toxic Release Inventory (TRI), the National Institute for Occupational Safety and Health (NIOSH), or state workers’ compensation records; and
- A documented history of referrals from local agencies or healthcare providers related to this hazard.
In addition, VOSH may want to establish communication through NIOSH with states that have an occupational respiratory disease state- based surveillance program (e.g., California, Massachusetts, Michigan, New Jersey, and Texas) to identify possible industries with a history of work-related asthma from isocyanate exposure. Information on NIOSH-funded state-based Respiratory Disease Surveillance programs can be found at http://www.cdc.gov/niosh/topics/surveillance/ords/StateBasedSurveillance/Statepr ograms.html.
VOSH in turn will notify DEA, Office of Statistical Analysis (OSA), of those industries, and DEA/OSA will include them in Appendix A when appropriate.
C. Site Selection.
- Master List Generation. For general industry and maritime inspections, the DEA/OSA will prepare a master inspection list for each VOSH Regional Office using the most current employer listing for the SIC/NAICS industries on the primary list in Appendix A. If the Field or Regional Office has inspected all potential establishments found in their jurisdiction with SIC/NAICS codes on the primary list, the Regional Office may then contact DEA/OSA to generate additional establishments for inspection using the secondary list. The industries marked with an asterisk on the primary and secondary lists in Appendix A will not be included in the master list of establishments generated by DEA/OSA (because the list establishments OSHA buys does not include establishments with these SIC/NIACS codes). Each Regional Office
will need to search local listings for establishments in its jurisdiction with these SIC/NAICS codes, and add any such establishments to is master list in accordance with section XII.B.2 of this instruction.
For construction inspections, when a CSHO inspects a construction site and determines that a company or operation is classified under one of the construction-related SIC/NAICS codes listed in Appendix A, the procedure in this Instruction shall be followed.
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- Additions. Exposures to isocyanates are found in many industries, but are not necessarily in all establishments within those industries. Regional Offices may generate their own master lists of establishments, or they may add establishments to the DEA-generated master list, based on sources that may include, but are not limited to:
a. The employer list (available from the DEA/OAS);
b. Commercial directories;
c. Telephone listings;
d. Local knowledge of establishments based on sources such as worker complaints, referrals from the local health department, or previous OSHA inspection history;
e. Dodge Reports for construction sites.
- Deletions. Regional Offices shall delete from their target list for a current inspection cycle any facilities which they know are not likely to have isocyanate hazards or are no longer conducting business. In addition, Regional Offices shall delete any establishment that has had a comprehensive or focused health inspection that addressed isocyanate hazards, conducted within the current or previous three (3) fiscal years with no serious citations related to this NEP, or where such citation(s) were issued but either a follow-up inspection documented
appropriate and effective efforts (e.g., air sampling, install engineering controls) by the employer to abate serious hazards cited or where VOSH received notice and confirmed that all cited serious hazards had been abated.
Regional Offices must maintain documentation supporting any deletions made under this paragraph.
- Cycle Generation. Each establishment on the Regional Office’s master list will be assigned a sequential number. The list will be randomized in accordance with Scheduling Systems for Programmed Inspections, VOSH PD 02-051A or its successor.
The Regional Office will create inspection cycles of five (5) or more establishments.
Each Regional Office must conduct at least three (3) inspections per year.
Subsequent cycles will be created in the same manner until the expiration of this NEP or until all establishments on the list have been assigned to a cycle. Cycles may be created all at once or as necessary, and need not be of the same size.
Note: Whenever a Regional Office becomes aware of a previously unknown establishment in one of the identified SIC/NAICS codes, the establishment shall be added to the bottom of the list in alphabetical order, assigned a sequential number, and randomized in accordance with Scheduling Systems for Programmed Inspections, VOSH PD 02-051A or its successor.
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D. Inspection Scheduling.
Within a specified cycle, inspections may be scheduled in any order that promotes efficient use of resources. An inspection cycle must be completed before another cycle is started, except that establishments may be carried over in accordance with VOSH PD 02-051A or its successor.
Some establishments selected for inspection under this NEP may also be selected under the current General Schedule, any Site-Specific Targeting (SST) Plan, if implemented, or other NEPs and/or Local Emphasis Programs (LEPs) which VOSH has adopted. Some of the other targeted NEPs include Amputations, Combustible Dust, Lead, Shipbuilding, and Silica.
Whenever possible, inspections under this NEP should be carried out concurrently with the SST or other programmed inspections.
Construction inspections shall be scheduled from a list of construction work sites pursuant to VOSH PD 02-105 or its successor. If during the course of any construction inspection a worksite falls within any of the SIC/NAICS codes listed in Appendix A, the
CSHO shall continue the inspection in accordance with the FOM and either 1) expand the scope in accordance with this NEP or 2) immediately submit a health referral to the Regional Health Director in order to focus on any activity that potentially exposes employees to isocyanates.
E. Complaints and Referrals.
- Construction.
Appendix A of this Directive provides construction industries where workers are most likely to have exposures to isocyanates. Whenever a Regional Office receives a complaint or referral for any construction operation where the potential exists for worker exposure to isocyanates, or a CSHO observes a potential worker exposure to isocyanates, or the Regional Office receives information through any other source regarding construction operations where there is a potential for exposure to isocyanates, the Regional Office shall:
- Document the status and condition of the work operation as far as they are known, noting any potentially serious hazard(s). Where possible, this
should include process information (such as the type of process or conditions of exposure) that is indicative of the likelihood of exposure to an isocyanate. Documentation of the events leading up to the observation must be maintained in the file;
-
Note the location of the workplace and name/address of the employer(s) performing the operation; and,
-
Handle the complaint or referral in accordance with the procedures outlined in the VOSH FOM, VOSH PD 02-001G or its successor.
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- When a safety CSHO is inspecting a construction site and observes an
activity where potential isocyanate exposures are suspected, appropriate health referrals will be made.
- General Industry / Maritime.
Complaint(s) or referral(s) for any general industry or maritime operation alleging potential exposures to isocyanates must be handled in accordance with the procedures outlined in Chapter 2 of the VOSH FOM, VOSH PD 02-001G, or its successor. Appendix A of this Isocyanates NEP provides information on general industry and maritime industries particularly likely to lead to worker exposures to isocyanates. Complaints and referrals alleging worker exposures to isocyanates or involving workers with occupational asthma from of isocyanates exposure or symptoms of exposure to isocyanates shall be treated as having priority and handled by an inspection.
F. Cooperative Programs.
Employers participating in cooperative programs may be exempt from programmed inspections. The CSHO should follow the procedures outlined in Chapter 3 of the VOSH FOM, VOSH PD 02-001G, or its successor, for additional guidance if an on-site consultation visit is in progress, or if the establishment is a participant in VOSH’s Voluntary Protection Program (VPP) or the Safety and Health Achievement Recognition Program (SHARP). In any event, such employers should be notified in writing that the
establishment was targeted for inspection under this instruction, and the employer should be encouraged to sample for isocyanates if it has not already done so.
G. Strategic Partnerships.
[RESERVED]
H. Expanding the Scope of the Inspection.
The CSHO may expand the scope of the inspection beyond the isocyanate-related work operations or activities if other workplace hazards or violations are observed and/or brought to the CSHO’s attention. The CSHO shall follow the guidelines for expanding the
scope of the inspection as set forth in VOSH PD 02-001G, Chapter 5, Section I.B., or its successor.
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X. Inspection Procedures.
A. Opening Conference.
During the opening conference, the employer’s status with respect to VOSH PD 02-003M, or its successor, Enforcement Exemptions and Limitations Under the Appropriations Act, shall be determined. Additionally, the CSHO will confirm that the employer’s SIC/NAICS code is included under this program and review the employer’s chemical inventory list and Safety Data Sheets (SDSs) (formally called Material Safety Data Sheets (MSDSs)) to confirm that the employer is using isocyanates. If a CSHO can verify that isocyanates are not in use at a listed establishment, the inspection should be discontinued, and another establishment shall be added to the cycle in its place to assure that the minimum number of sites is inspected each year. If an establishment is not one of the listed establishments but the CSHO has verified that the facility is using isocyanates, an inspection shall be initiated following this instruction.
B. Recordkeeping.
The employer’s injury and illness records shall be reviewed to determine if injuries and illnesses related to isocyanate exposures have been recorded, including any work-related cases of asthma. If, during the course of the inspection, the CSHO determines that injuries and illnesses from exposures to isocyanates are not being recorded, the citation guidance in VOSH PD 09-104 or its successor, Recordkeeping Policies and Procedures Manual, shall be followed. The CSHO shall attempt to interview enough employees exposed to isocyanates to determine if there are unrecorded injury and illness cases.
Cases of occupational illness due to isocyanate exposure may be discovered during a review of the employer’s injury and illness logs (OSHA 300). When a CSHO identifies a possible isocyanate-related occupational illness occurrence on the 300 Log, a medical access order (MAO) must be obtained in order to review a worker’s medical records.
See MAO directive, VOSH PD 02-022A or its successor, for further information. The CSHO may also request written permission of the worker to review his/her medical records. If the worker agrees, the Authorization Letter for the Release of Medical Records (See MAO Directive, Appendix B-1) shall be completed and signed by the
worker.
Occupational illness information may also be obtained during worker interviews. The non-mandatory health surveillance form (Appendix C of this Directive) may be used when interviewing workers.
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The Office of Occupational Medicine may be contacted if there are questions regarding documentation of cases of occupational illness, including evaluation of the health surveillance forms, review of medical records, interviews with healthcare providers, and analysis of the scientific literature. Regional Offices should coordinate their request to the VOSH Occupational Health Director for assistance of the Office of Occupational Medicine. Additional information on occupational medicine resources are found in Appendix H.
C. Exposure Assessments.
Inspections conducted under this Directive shall include an evaluation of the employer’s controls (engineering controls, administrative and work practice controls, and personal protective equipment (PPE)) where potential exposures to isocyanates are present. The CSHO may contact the VOSH Director of Occupational Health for assistance when evaluating engineering and other controls.
NOTE: The CSHO shall wear the appropriate personal protective equipment during all inspections, including when taking screening, area and/or personal isocyanate samples (air, skin), and must follow all safety and health precautions as found in the OSHA Field Safety and Health Manual, ADM 04-00-001.
- Air Sampling. Personal air samples shall be collected during inspections conducted under this NEP. The CSHO shall be prepared to take samples on the opening day of the inspection. If the process that uses isocyanates is not in
operation the day of the inspection, the CSHO shall return at a later date to perform sampling. Where the employer has recent and accurate sampling exposure data (e.g., taken by VOSH Consultation, third party consultant, insurance company), the CSHO shall consult with the Regional Health Director to determine if further sampling is required. When operations using isocyanates are infrequent or unplanned, the CSHO shall consult with the Regional Health Director to determine if sampling is necessary.
Appendix B provides information to the CSHO on sampling protocol, how to order sampling media, and sample shipping instructions. CSHOs should contact the Salt Lake Technical Center (SLTC) laboratory for any questions regarding sampling for isocyanates. All VOSH Regional offices shall follow the air sampling protocol as described in Appendix B. Air samples collected during this NEP will be extracted in the field by CSHOs as described in Appendix B of this Directive.
Note: See Appendix B for a listing of OSHA sampling and analytical methods.
Individual methods can also be found using the “Analytical Methods” link (http://www.osha.gov/dts/sltc/methods/index.html) on the OSHA public web site.
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- Wipe Sampling. Occupational exposure to isocyanates is a recognized cause of immune sensitization and asthma. Scientific research indicates that dermal exposure to isocyanates is at least as likely as inhalation exposure to induce isocyanate-related asthma. Experiments with laboratory animals have shown that dermal exposure alone to some isocyanates can be sufficient to induce respiratory sensitization. However, VOSH does not currently have any standards setting limits for surface contamination with, or dermal exposure to, isocyanates. Accordingly, if wipe sampling reveals surface contamination or dermal exposure, citations may be issued under the applicable housekeeping standards and/or PPE standards. For housekeeping violations cite §§1910.141 (General Industry), 1926.25 (Construction), 1915.81 (Shipyard), or 1918.91 (Longshoring). For PPE violations cite Part 1910 Subpart I (General Industry), 1926 Subpart E (Construction), 1915 Subpart I (Shipyard), or 1918 Subpart J,
(Longshoring).
a. Surface sampling. CSHOs should check for surface contamination (e.g., visible foam/coating) on surfaces, tools and equipment near the operation using isocyanates as well as in places where contamination may not be expected such as drinking fountains, telephones, locker rooms, and lunchrooms, to identify potential sources of dermal exposure and evaluate housekeeping and PPE deficiencies. Direct- reading colorimetric wipes can be used to sample surfaces for potential contamination.
b. Dermal Sampling. When the CHSO observes contaminated surfaces and equipment, dermal sampling should be conducted. Direct-reading colorimetric wipes can be used to sample dermal exposures.
c. PPE Sampling. Gloves are one of the most basic forms of PPE but their resistance to penetration by isocyanates may not be known. Direct-reading colorimetric media can be used to detect permeation of isocyanates through gloves. Other PPE should also be wipe sampled for contamination such as the inside of respirators. See Section C.2 for information on PPE evaluation.
d. Methodology. There are two types of direct-reading colorimetric wipe kits available for performing surface, dermal or PPE wipe sampling. One is for aliphatic isocyanates (e.g., Hexamethylene diisocyanate or HDI) and the other is for aromatic isocyanates (e.g., Methylene bisphenyl isocyanate or MDI). The CSHO shall document the results of
any surface, dermal or PPE wipe sampling in the case file. In addition, when a wipe sample is collected the CSHO should add the code “IWIPE” on the OIS form under the Additional Information section. The OSHA Health Response Team can be consulted if the CSHO chooses to conduct surface, dermal, or PPE wipe sampling. 11
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Both types of surface, dermal or permeation test kits are available from the Cincinnati Technical Center’s (CTC’s) agency expendable supplies program.
For general information on wipe sampling, refer to the OSHA/VOSH Technical Manual, Section II, Chapter 2, subsection V [VOSH PD 09-052. available at http://www.osha.gov/dts/osta/otm/otm_ii/otm_ii_2.html
Note: CSHOs should contact the Regional Health Director regarding contacting the SLTC laboratory for information regarding how to order wipe sampling media, and the wipe sampling and sample shipping
procedures.
D. Citation Guidelines.
Where inhalation exposure to an isocyanate exceeds the VOSH PEL set forth at § 1910.1000(a), Table Z-1, without regard to the use of respiratory protection, citations shall generally be issued as serious, following the citation policy in the VOSH FOM.
Where an overexposure exists and feasible engineering and/or administrative controls were not utilized or were ineffective, an additional serious citation shall generally be issued under § 1910.1000(e) and grouped with the overexposure citation.
Where workers are exposed to a particular isocyanate having an established OEL, but no PEL, a citation for exposure in excess of the OEL may be considered under the
General Duty Clause, Va. Code §40.1-51.1.A. See VOSH FOM Chapter 10, Section III., K.2. (see Appendix F of this Directive for sample General Duty Clause violation language). Any General Duty Clause citation(s) for exposure to an isocyanate under this NEP must be reviewed by the VOSH Director, in consultation with the Division of Legal Support. If the elements of a General Duty violation are not met or a decision is made not to issue a citation, a Hazard Alert Letter (HAL) shall then be considered recommending specific actions that would reduce worker exposures to isocyanates. A sample hazard alert letter is included in Appendix D of this Directive. When a HAL is issued the code “IHAL” shall be coded on the OIS form under the Additional Information section.
If a worker is exposed to concentrations of a particular isocyanate below the PEL, but in excess of an established occupational exposure limit, citations will not normally be issued (see VOSH FOM, Chapter 10, Section III.,K.2.(5). To illustrate:
12
--- Page 21 ---
Exposure Issue Consider General Consider HAL Citation Duty Violation
PEL If General
No PEL, Duty not but > OEL, issued or elements not met
see VOSH FOM, If General < PEL, but > Chapter 10, Duty violation OEL, Section III., not issued or K.2.(5) elements not met
Reported illnesses/health If serious If General effects (even if illnesses/or health Duty violation no effects present overexposures not issued or and employer have been elements not recognizes documented) met the hazard Serious health effects are isocyanate-related illness cases recorded on the OSHA-300 log such as occupational dermatitis, i.e., not irritation, skin sensitization, gastrointestinal tract issues and work-related asthma.
If the employer has ten or fewer employees, the Regional Office shall follow the enforcement guidance outlined in VOSH 02-003M or its successor , Enforcement Exemptions and Limitations Under the Appropriations Act .
For citing improper personal hygiene practices for ingestion or absorption hazards, see VOSH FOM, Chapter 10, Section III.F.3. Dermal exposures occurring as a result of not using or misusing PPE or using ineffective PPE shall be cited as described in Section X.E.3 of this Directive.
13
[TABLE 21-1] Exposure | Issue Citation | Consider General Duty Violation | Consider HAL > PEL | | | No PEL, but > OEL, | | | If General Duty not issued or elements not met < PEL, but > OEL, | | see VOSH FOM, Chapter 10, Section III., K.2.(5) | If General Duty violation not issued or elements not met Reported illnesses/health effects (even if no overexposures have been documented) | | If serious illnesses/or health effects present and employer recognizes the hazard | If General Duty violation not issued or elements not met
[/TABLE]
--- Page 22 ---
Surface contamination shall be cited under Housekeeping as described in
Section X.G.3 of this Directive.
E. Personal Protective Equipment (PPE).
-
PPE Assessment. At the opening conference, the CSHO shall review the employer’s hazard assessment to determine compliance with the applicable PPE regulations, including Parts 1910 Subpart I (General Industry), 1926 Subpart E (Construction), 1915 Subpart I (Shipyard), and 1918 Subpart J (Longshoring).
-
PPE Evaluation. The CSHO shall evaluate whether the employer has ensured the use of appropriate PPE during operations using isocyanates and the CSHO shall evaluate the effectiveness of the PPE being used in the establishment. If the employer has failed to ensure the use of required PPE, or has selected PPE which is ineffective against isocyanates, a citation of the appropriate PPE
standard shall be issued.
a. The use of appropriate personal protective clothing (e.g., coveralls, foot coverings) shall be evaluated. Employers shall require the use of personal protective clothing that is adequate to prevent contamination of an employee’s personal clothing and skin.
b. The use of appropriate eye and/or face protection shall be evaluated.
Employers shall require the use of eye and/or face protection that is adequate to protect the employee’s eyes and/or face from exposure to isocyanates.
c. The use of appropriate respiratory protection shall be evaluated.
Detailed inspection and citation guidance related to VOSH’s respiratory protection standard, §1910.134, is contained in VOSH PD 02-411 or its
successor, Inspection Procedures for the Respiratory Protection Standard.
d. The use of appropriate, chemical-resistant gloves (e.g., butyl, nitrile) shall be evaluated. Employers shall select and require the use of gloves that are adequate to protect the employees from dermal exposure to isocyanates (e.g., by checking the manufacturer’s information about the glove type or the Safety Data Sheet (formally MSDS). See Section C.2.c above for information on PPE (permeation) sampling.
- Citation Guidelines. All citations related to the employer’s failure to ensure the use of appropriate and effective PPE during operations using isocyanates shall be cited in accordance with the VOSH FOM, the VOSH PPE Directive, VOSH PD 02-243A or its successor, Part 1910, Subpart I, Enforcement Guidance for Personal Protective Equipment (PPE) in General Industry, and/or VOSH PD 02-411, or its successor, Inspection Procedures for the Respiratory
Protection Standard. Violations of the PPE standards shall be cited under the 14
--- Page 23 ---
applicable PPE regulation (see Parts 1910 Subpart I (General Industry), 1926
Subpart E (Construction), 1915 Subpart I (Shipyard), and 1918 Subpart J (Longshoring).
F. Hazard Communication.
Detailed inspection and citation guidance related to the OSHA Hazard Communication Standard, § 1910.1200, applicable to general industry, construction and maritime, is contained in VOSH PD 02-060A or its successor, Inspection Procedures for the Hazard Communication Standard. A determination of whether the employer’s hazard
communication program complies with §1910.1200 must include consideration of the training the employer provides to employees regarding the hazards associated with isocyanates. Failure to provide adequate training on the hazards of isocyanate exposure shall be cited in accordance with VOSH PD 02-060A or its successor.
Note: The Hazard Communication Standard (HCS) was revised March 2012. A revised HCS compliance instruction (CPL) will be issued, at which point CSHOs shall follow the revised HCS CPL.
G. Housekeeping.
- Housekeeping Evaluation. The employer’s methods for ensuring adequate housekeeping shall be evaluated and documented. The frequency of cleaning and methods used must be assessed when determining whether the employer’s housekeeping practices may have contributed to employee illnesses associated
with isocyanates (e.g., sensitization). See Section X.C.2 of this Directive for further guidance on wipe sampling methodology.
-
CSHOs should check for accumulation of isocyanates on surfaces and equipment in the work/process area, outside of the work/process area, and in eating and break areas, as well as cleaning schedules and/or a pattern of housekeeping hazards.
-
Citation Guidelines. Citations for violations of §§1910.141 (General Industry), 1926.25 (Construction), 1915.81 (Shipyard), and 1918.91 (Longshoring) shall be issued where poor housekeeping practices are documented (e.g., visible foam/coating on machinery, tools, floor or equipment near the operation) that present a risk to workers of dermal contact with isocyanates. Further information may be found in the VOSH FOM, Chapter 10, Section III. F.3.
H. Flammable and Combustible Products.
Where the chemical components of an isocyanate process or operation contain flammable or combustible materials, compliance with §§ 1910.106 and 1910.107 (General Industry), 1926.152 (Construction), and 1915.36 (Shipyard) shall be evaluated.
15
--- Page 24 ---
CSHOs shall cite observed and documented violations of these standards. Where an employer is in violation of §1910.106 or §1910.107 but is in full compliance with the most current version of NFPA 30 – Flammable and Combustible Liquids Code or NFPA 33 -Standard for Spray Application Using Flammable or Combustible Materials, respectively, violations of §1910.106 or §1910.107 will be classified as de minimis. The employer shall be verbally notified of de minimis violations, and it shall also be noted in the inspection case file.
XI. Follow-up Inspections.
To determine whether the employer has eliminated hazards or reduced exposures below the PEL (or OEL), follow-up inspections shall be conducted in accordance with the VOSH FOM, Chapter 3, Section I.B., based on available resources. Where exposures could not feasibly be reduced below
the PEL (or OEL), engineering controls and administrative and work practice controls must still have been implemented to reduce exposures to the extent feasible, and workers provided with adequate respiratory protection and other appropriate PPE where necessary.
A follow-up inspection is not required when the Regional Office has specific knowledge and documentation indicating that the employer is no longer using isocyanates or there are no workers exposed to isocyanates.
XII. Hazard Alert Letter (HAL) - Follow-up.
A. HAL Follow-up.
Where a HAL has been sent to an employer for worker exposures to isocyanates, follow-up inspections will be conducted to verify that it has taken appropriate action to
protect workers, unless the Regional Office has specific knowledge that the employer no longer uses, or workers are no longer exposed to, the isocyanate(s). The follow-up inspection should, based on resource availability, be made within 12 to 24 months after the HAL is originally issued.
B. Employer’s HAL Progress.
During a HAL follow-up the CSHO shall evaluate the employer’s efforts to address employee exposure to isocyanates.
-
Where the CSHO determines that the employer has adequately addressed exposures (e.g., air sample results below PEL, workers wearing appropriate PPE, good housekeeping practices), a closing conference shall be conducted.
-
Where the CSHO determines that the employer is making adequate progress (e.g., a ventilation system is being installed, no surface
16
--- Page 25 ---
accumulation) on abating worker exposures to the isocyanate hazards, the CSHO shall conduct a closing conference and exit the premises, and no citations shall be issued. However, at the Regional Director’s discretion, a second HAL may be issued and another follow-up inspection conducted where necessary to ensure the continuation of abatement efforts.
- Where the CSHO determines that the employer has made limited or no progress, the CSHO shall conduct an inspection using the procedures in this instruction.
XIII. VOSH Integrated Management Information System (IMIS) Coding.
All enforcement activities (inspections, complaints, and referrals) and compliance assistance
interventions conducted under this NEP must be coded with the NEP code, “ISOCYAN8,” entered in the appropriate IMIS field on the VOSH-1 form.
The majority of inspections conducted under this NEP will be coded as “Health (H)” inspections. If an inspection under this NEP is conducted in conjunction with an SST inspection (or other safety-related inspections), “H,” the appropriate SST year (e.g., “SSTARG __”), along with the NEP code “ISOCYAN8” must be entered in the appropriate IMIS fields on the VOSH-1 form.
Whenever a consultation request/visit is made in response to this NEP, the NEP code “ISOCYAN8” must be recorded in the appropriate field on the Consultation request/visit forms.
For inspections of firms that are planned or targeted as a result of this NEP, inspection type will be coded as “Programmed Planned” and then classification coded as NEP specifically indicating
“ISOCYAN8”.
An inspection that is conducted as a referral and inspected during the current inspection cycle under this NEP will be coded as “Programmed Related” and then classification coded as an NEP specifically indicating “ISOCYAN8”. Where “Program Related” inspections are conducted, they will be so indicated on the VOSH-1.
Inspections under this NEP that are conducted as a result of a complaint or fatality/catastrophe will be coded as “Unprogrammed Related” and then classification coded as an NEP specifically indicating as “ISOCYAN8”.
XIV. Outreach.
A. Offices.
Each Regional Office is encouraged to develop outreach programs that will support the efforts of the Department in meeting the Department’s strategic goal of safe jobs for everyone. Such programs could include letters to employers, professional associations, local safety councils, apprenticeship programs, local hospitals and occupational health clinics, and other employer organizations for workplaces that have potential worker exposures to isocyanates or provide medical assistance in treating workers’ illnesses 17
--- Page 26 ---
associated with exposure to isocyanates. Speeches, training sessions, and/or news
releases through the local newspaper(s), safety councils and/or industrial hygiene organizations can provide other avenues for dissemination of information. Regional Office alliances developed with industry, labor groups, and other organizations could also be an effective way to reach out to affected employers and workers.
B. Online Materials.
OSHA resources may be of assistance in this outreach effort. A variety of online resources can be accessed through OSHA’s public web page, www.osha.gov, including an Isocyanates Safety and Health Topics Page (available at http://www.osha.gov/SLTC/isocyanates/index.html). See also Appendix E for additional online resources and publications.
XV. Coordination.
This NEP will be coordinated for OSHA by the OSHA Directorate of Enforcement Programs (DEP) -Office of Health Enforcement (OHE).
The Director of the Virginia Occupational Health Program shall be the coordinator for this NEP for VOSH and will work with the OSHA Office of Health Enforcement and/or other state agencies as required. All questions and comments should be directed to the Director of Occupational Health for VOSH who will coordinate with the Directorate of Technical Support and Emergency Management (DTSEM), the OSHA Office of Occupational Medicine (OOM), and other OSHA offices for assistance as needed.
XVI. Program Evaluation.
This NEP will be evaluated using data collected from inspection case files and follow-up site visit
reports submitted by each Regional Office to Headquarters. The data will be evaluated to determine the impact of VOSH inspections on the reduction of worker exposures to isocyanates.
18
--- Page 27 ---
Appendix A 5 Industries Where Isocyanate Exposures are Known or Likely to Occur
- Automotive – paints, glues, • Printing – inks and lacquers insulation, sealants and fiber • Timber and furniture – adhesives, bonding, truck bed lining lacquers, upholstery stuffing and
- Casting – foundry cores fabric
- Building and construction – sealants, • Textile – synthetic textile fibers glues, insulation material, fillers • Medical care – PUR casts
- Electricity and electronics – cable • Mining – sealants and insulating insulation, PUR coated circuit boards materials
- Mechanical engineering – insulation • Food industry – packaging materials material and lacquers
-
Paints – lacquers
-
Plastics – soft and hard plastics, plastic foam and cellular plastic
The tables below provide a construction list as well as primary and secondary lists for general industry and maritime by SIC and NAICS codes. The construction list identifies sectors where construction workers are most likely to have exposures to isocyanates. The primary list includes general industry and maritime industries where exposures to isocyanates are known to occur, exposures have been demonstrated to be above the PEL, and workers have exhibited illnesses associated with exposure to isocyanates. The secondary list for general industry/maritime includes settings where exposures to isocyanates are known to occur, however not all establishments in these listed industries have necessarily documented worker overexposures to isocyanates.
Note: The following are not exhaustive lists. A regional office may include an industry sector/code not listed if it falls within their regional office’s jurisdiction.
Construction
SIC SIC TITLE NAICS 2007 NAICS TITLE Painting and Paper Painting and Wall Covering 1721 238230 Hanging Contractors Plastering, Drywall, Drywall and Insulation 1742 Acoustical, and 238310 Contractors Insulation Work Floor Laying and 1752 Other Floor Work, 238330 Flooring Contractors NEC Glass and Glazing Glass and Glazing 1793 238150 Work Contractors 5 International Consensus Report on: Isocyanates – Risk assessment and management, 2001, pgs. 11-12, http://www.arbeidstilsynet.no/binfil/download2.php?tid=77871
A-1
[TABLE 27-1]
SIC | SIC TITLE | NAICS 2007 | NAICS TITLE 1721 | Painting and Paper Hanging | 238230 | Painting and Wall Covering Contractors 1742 | Plastering, Drywall, Acoustical, and Insulation Work | 238310 | Drywall and Insulation Contractors 1752 | Floor Laying and Other Floor Work, NEC | 238330 | Flooring Contractors 1793 | Glass and Glazing Work | 238150 | Glass and Glazing Contractors
[/TABLE]
--- Page 28 ---
Special Trade Glass and Glazing 1799 238150 Contractors, NEC Contractors General Industry/Maritime (Primary)
NAICS SIC SIC Title NAICS Title 2007 Textile goods, Not 2299 313230 Nonwoven Fabric Mills Elsewhere Classified Furniture and Fixtures, 2599 Not Elsewhere 339950 Sign Manufacturing Classified Paints, Varnishes, Paint and Coating 2851 Lacquers, Enamels, and 325510 Manufacturing Allied Products Showcase, Partition, Shelving, 3089 Plastics Products, NEC 337215 and Locker Manufacturing Cut Stone and Stone Cut Stone and Stone Product 3281 327991 Products Manufacturing Millwork/Metal Wood or Metal framed 3442 Window and Door 332321 windows and Doors, Manufacturing Manufacturing Fabricated Metal All Other Miscellaneous 3499 Products, Not 332999 Fabricated Metal Product Elsewhere Classified Manufacturing 3721 Aircraft and Parts 336411 Aircraft Manufacturing Boat Building and 3732 Repairing (boat 336612 Boat Building building) Travel Trailers and Travel Trailer and Camper 3792 336214 Campers Manufacturing Top, Body, and Automotive Body, Paint, and 7532 Upholstery Repair 811121 Interior Repair and Shops and Paint Shops Maintenance * = No target list currently available from DEA/OSA. Area Regional Offices may generate their own list for these SIC/NAICS industries which fall under their jurisdiction.
General Industry/Maritime (Secondary) SIC SIC Title NAICS 2007 NAICS Title Tire Cord and Tire Fabric 2296 Tire Cord and Fabrics 314992 Mills Misc. Fabricated Motor Vehicle Seating and 2396 Textile Products 336360 Interior Trim Manufacturing Automotive Trimmings, Apparel Findings, and Related Products (textile motor Motor Vehicle Seating and 2396 vehicle trimming) 336360 Interior Trim Manufacturing
A-2
[TABLE 28-1] 1799 | Special Trade Contractors, NEC | 238150 | Glass and Glazing Contractors
[/TABLE]
[TABLE 28-2] SIC | SIC Title | NAICS 2007 | NAICS Title 2299 | Textile goods, Not Elsewhere Classified | 313230 | Nonwoven Fabric Mills 2599 | Furniture and Fixtures, Not Elsewhere Classified | 339950 | Sign Manufacturing 2851 | Paints, Varnishes, Lacquers, Enamels, and Allied Products | 325510 | Paint and Coating Manufacturing 3089 | Plastics Products, NEC | 337215 | Showcase, Partition, Shelving, and Locker Manufacturing 3281 | Cut Stone and Stone Products | 327991 | Cut Stone and Stone Product Manufacturing 3442 | Millwork/Metal Window and Door Manufacturing | 332321 | Wood or Metal framed windows and Doors, Manufacturing 3499 | Fabricated Metal Products, Not Elsewhere Classified | 332999 | All Other Miscellaneous Fabricated Metal Product Manufacturing 3721 | Aircraft and Parts | 336411 | Aircraft Manufacturing 3732 | Boat Building and Repairing (boat building) | 336612 | Boat Building 3792 | Travel Trailers and Campers | 336214 | Travel Trailer and Camper Manufacturing 7532 | Top, Body, and Upholstery Repair Shops and Paint Shops | 811121 | Automotive Body, Paint, and Interior Repair and Maintenance
[/TABLE]
[TABLE 28-3] SIC | SIC Title | NAICS 2007 | NAICS Title 2296 | Tire Cord and Fabrics | 314992 | Tire Cord and Tire Fabric Mills 2396 | Misc. Fabricated Textile Products | 336360 | Motor Vehicle Seating and Interior Trim Manufacturing 2396 | Automotive Trimmings, Apparel Findings, and Related Products (textile motor vehicle trimming) | 336360 | Motor Vehicle Seating and Interior Trim Manufacturing
[/TABLE]
--- Page 29 ---
Wood Window and Door 2431 Millwork 321911 Manufacturing Hardwood Veneer and Hardwood Veneer and 2435 Plywood 321211 Plywood Manufacturing Softwood Veneer and Softwood Veneer and 2436 Plywood 321212 Plywood Manufacturing Reconstituted Wood Reconstituted Wood Product 2493 Products 321219 Manufacturing Public Building and Motor Vehicle Seating and 2531 Related Furniture 336360 Interior Trim Manufacturing Drapery Hardware and Window Blinds and Blind and Shade 2591 Shades 337920 Manufacturing Commercial Printing, Commercial Flexographic 2759 NEC 323112 Printing Rubber and Baskets Rubber and Plastics Hoses 3052 Hose and Belting 326220 and Belting Manufacturing Molded, Extruded and Rubber Product Lathe-Cut Mechanical Manufacturing for 3061 Rubber Goods 326291 Mechanical Use Fabricated Rubber Products, NEC (except rubberized fabric and rubber resilient floor All Other Rubber Product 3069 covering) 326299 Manufacturing Laminated Plastics Plate, Sheet (except Packaging), and 3083 Laminated Plastics 326130 Shape Manufacturing Plate, Sheet, and Profile Shapes Plastics Foam Urethane and other Foam Products (urethane Product (except Polystyrene) 3086 and other foam 326150 Manufacturing Plasptircosd Puluctms)b ing Plastics Plumbing Fixture 3088 Features 326191 Manufacturing Gray and Ductile Iron 3321 Foundries 331511 Iron Foundries Copper Foundries (except 3366 Copper Foundries 331525 Die-Casting) Metal Coating, Engraving Coating, Engraving, (except Jewelry and and Allied Services, Silverware), and Allied 3479 NEC 332812 Services to Manufacturers Industrial Valve 3491 Industrial Valves 332911 Manufacturing Internal Combustion Other Engine Equipment 3519 Engines, NEC 333618 Manufacturing
A-3
[TABLE 29-1] 2431 | Millwork | 321911 | Wood Window and Door Manufacturing 2435 | Hardwood Veneer and Plywood | 321211 | Hardwood Veneer and Plywood Manufacturing 2436 | Softwood Veneer and Plywood | 321212 | Softwood Veneer and Plywood Manufacturing 2493 | Reconstituted Wood Products | 321219 | Reconstituted Wood Product Manufacturing 2531 | Public Building and Related Furniture | 336360 | Motor Vehicle Seating and Interior Trim Manufacturing 2591 | Drapery Hardware and Window Blinds and Shades | 337920 | Blind and Shade Manufacturing 2759 | Commercial Printing, NEC | 323112 | Commercial Flexographic Printing 3052 | Rubber and Baskets Hose and Belting | 326220 | Rubber and Plastics Hoses and Belting Manufacturing 3061 | Molded, Extruded and Lathe-Cut Mechanical Rubber Goods | 326291 | Rubber Product Manufacturing for Mechanical Use 3069 | Fabricated Rubber Products, NEC (except rubberized fabric and rubber resilient floor covering) | 326299 | All Other Rubber Product Manufacturing 3083 | Laminated Plastics | 326130 | Laminated Plastics Plate, Sheet (except Packaging), and Shape Manufacturing | Plate, Sheet, and Profile Shapes | | 3086 | Plastics Foam Products (urethane and other foam | 326150 | Urethane and other Foam Product (except Polystyrene) Manufacturing 3088 | Plasptircosd Puluctms)b ing Features | 326191 | Plastics Plumbing Fixture Manufacturing 3321 | Gray and Ductile Iron Foundries | 331511 | Iron Foundries 3366 | Copper Foundries | 331525 | Copper Foundries (except Die-Casting) 3479 | Coating, Engraving, and Allied Services, NEC | 332812 | Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers 3491 | Industrial Valves | 332911 | Industrial Valve Manufacturing 3519 | Internal Combustion Engines, NEC | 333618 | Other Engine Equipment Manufacturing
[/TABLE]
--- Page 30 ---
Air-Conditioning and Warm Air Heating Equipment and Air-Conditioning and Warm Commercial and Air Heating Equipment and Industrial Commercial and Industrial Refrigeration Refrigeration Equipment 3585 Equipment 333415 Manufacturing
Household Refrigerators and Home and Farm Household Refrigerator and 3632 Freezers 335222 Home Freezer Manufacturing Electronic Coils, Electronic Coil, Transformer, Transformers, Other and Other Inductor 3677 Conductors 334416 Manufacturing Other Motor Vehicle Motor Vehicle Parts Electrical and Electronic 3714 and Accessories 336322 Equipment Manufacturing Orthopedic, Prosthetic, and Surgical Appliances All Other Miscellaneous 3842 and Supplies 339999 Manufacturing Jewelry, Silverware, Jewelry (except Costume) 3911 and Plated Ware 339911 Manufacturing Manufacturing All Other Plastics Product 3999 Industries, NEC 326199 Manufacturing Water Transportation Inland Water Freight 4449 of Freight, NEC 483211 Transportation Transportation All Other Support Activities 4789 Services, NEC 488999 for Transportation Other Electric Power 4911 Electric Services 221119 Generation Gas, and Other Utility 4932 Services Combined 221210 Natural Gas Distribution General Automotive 7538 Repair Shops 811111 General Automotive Repair Other Automotive Automotive Repair Mechanical and Electrical 7539 Shops, NEC 811118 Repair and Maintenance Automotive Services, Except Repair and 7549 Carwashes 488410 Motor Vehicle Towing Automotive Glass 811122 Replacement Shops Automotive Oil Change and 811191 Lubrication Shops All Other Automotive Repair 811198 and Maintenance * = No target list currently available from DEA/OSA. Regional Offices may generate their own list for these SIC/NAICS industries which fall under their jurisdiction.
A-4
[TABLE 30-1] 3585 | Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment | 333415 | Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing
[/TABLE]
[TABLE 30-2] 3632 | Household Refrigerators and Home and Farm Freezers | 335222 | Household Refrigerator and Home Freezer Manufacturing 3677 | Electronic Coils, Transformers, Other Conductors | 334416 | Electronic Coil, Transformer, and Other Inductor Manufacturing 3714 | Motor Vehicle Parts and Accessories | 336322 | Other Motor Vehicle Electrical and Electronic Equipment Manufacturing 3842 | Orthopedic, Prosthetic, and Surgical Appliances and Supplies | 339999 | All Other Miscellaneous Manufacturing 3911 | Jewelry, Silverware, and Plated Ware | 339911 | Jewelry (except Costume) Manufacturing 3999 | Manufacturing Industries, NEC | 326199 | All Other Plastics Product Manufacturing 4449 | Water Transportation of Freight, NEC | 483211 | Inland Water Freight Transportation 4789 | Transportation Services, NEC | 488999 | All Other Support Activities for Transportation 4911 | Electric Services | 221119 | Other Electric Power Generation 4932 | Gas, and Other Utility Services Combined | 221210 | Natural Gas Distribution 7538 | General Automotive Repair Shops | 811111 | General Automotive Repair 7539 | Automotive Repair Shops, NEC | 811118 | Other Automotive Mechanical and Electrical Repair and Maintenance 7549 | Automotive Services, Except Repair and Carwashes | 488410 | Motor Vehicle Towing | | 811122 | Automotive Glass Replacement Shops | | 811191 | Automotive Oil Change and Lubrication Shops | | 811198 | All Other Automotive Repair and Maintenance
[/TABLE]
--- Page 31 ---
Appendix B
ISOCYANATE SAMPLING, FIELD EXTRACTION, and SAMPLE SHIPMENT PROCEDURES
The CSHO should contact the SLTC laboratory directly for questions regarding a sampling and/or analytical method.
(Ref: OSHA Chemical Sampling Information) Occupational Exposure Limits Isocyanate (OEL) OSHA Sample CAS no. OSHA Vapor OSHA PEL NIOSH REL1 ACGIH TLV® 2 Method Sampling Flow Rate Volume IMIS no. Synonyms Pressure ppm mg/m3 ppm mg/m3 ppm mg/m3 no. Medium (L/min) (L) Methyl isocyanate Method XAD-7 348 mmHg 0.02 0.05 0.02 0.05 0.02 624-83-9 MIC; Isocyanatomethane 54 tube 0.05 15
@ 68 °F T T T T T
1773 FV 1-2PP 4,4-Diphenylmethane Methylene diisocyanate; MDI; 0.005 0.050 bisphenyl 0.000005 0.005 Method 4,4-Diisocyanadiphenyl-methane; 0.02 0.2 T T GFF isocyanate mmHg T 47 1.0 15 Methylene bis(4- C C 0.02 0.2 1-2PP 101-68-8 @ 77 °F FV phenylisocyanate); Methylene C C 1073 Bis(Phenyl Isocyanate) Toluene-2,4- 2,4-Diisocyanato-1- 0.0055 Method 15 diisocyanate (TDI) methylbenzene; TDI; 0.01 mmHg 0.02 0.14 T GFF 4 42 1.0 to 584-84-9 2,4-TDI; 2,4-Toluene @ 77 °F C C 0.02 1-2PP FV 240 2470 diisocyanate STEL Hexamethylene 0.005 0.035 Method diisocyanate HDI; HMDI; 0.5 mmHg T T 0.005 GFF 42 1.0 15 822-06-0 1,6-Diisocyanatohexane @ 77 °F 0.02 0.14 T 1-2PP
FV
1377 C6 C6 1,6-Hexamethylene
- 000075 diisocyanate biuret 1,6-Hexamethylene diisocyanate PV2030 GFF mmHg 1.0 15 4035-89-6 Biuret; HDI Biuret; HDIB PV 1-2PP
@ 77 °F
D668
B-1
[TABLE 31-1] Isocyanate CAS no. OSHA IMIS no. | Synonyms | Vapor Pressure | OSHA PEL | | Occupational Exposure Limits (OEL) | | | | OSHA Method no. | Sampling Medium | Flow Rate (L/min) | Sample Volume
(L)
| | | | | NIOSH REL1 | | ACGIH TLV® 2 | | | | | | | | ppm | mg/m3 | ppm | mg/m3 | ppm | mg/m3 | | | | Methyl isocyanate 624-83-9 1773 | MIC; Isocyanatomethane | 348 mmHg
@ 68 °F | 0.02
T | 0.05
T | 0.02
T | 0.05
T | 0.02 T | | Method 54 FV | XAD-7 tube 1-2PP | 0.05 | 15 Methylene bisphenyl isocyanate 101-68-8 1073 | 4,4-Diphenylmethane diisocyanate; MDI; 4,4-Diisocyanadiphenyl-methane;
Methylene bis(4-phenylisocyanate); Methylene Bis(Phenyl Isocyanate) | 0.000005 mmHg
@ 77 °F | 0.02
C | 0.2
C | 0.005
T
- 02
C | 0.050
T
- 2
C | 0.005 T | | Method 47
FV | GFF
1-2PP | 1.0 | 15 Toluene-2,4-diisocyanate (TDI) 584-84-9 2470 | 2,4-Diisocyanato-1-methylbenzene; TDI; 2,4-TDI; 2,4-Toluene diisocyanate | 0.01 mmHg
@ 77 °F | 0.02
C | 0.14
C | | 4 | 0.0055
T
- 02 STEL | | Method 42
FV | GFF
1-2PP | 1.0 | 15 to 240 Hexamethylene diisocyanate 822-06-0 1377 | HDI; HMDI; 1,6-Diisocyanatohexane | 0.5 mmHg
@ 77 °F | | | 0.005
T
- 02
C6 | 0.035
T
- 14
C6 | 0.005 T | | Method 42
FV | GFF
1-2PP | 1.0 | 15 1,6-Hexamethylene diisocyanate biuret 4035-89-6 D668 | 1,6-Hexamethylene diisocyanate Biuret; HDI Biuret; HDIB | 0.000075 mmHg
@ 77 °F | | | | | | | PV2030
PV | GFF
1-2PP | 1.0 | 15
[/TABLE]
--- Page 32 ---
Occupational Exposure Limits Isocyanate (OEL) OSHA Sample CAS no. OSHA Vapor OSHA PEL NIOSH REL1 ACGIH TLV® 2 Method Sampling Flow Rate Volume IMIS no. Synonyms Pressure ppm mg/m3 ppm mg/m3 ppm mg/m3 no. Medium (L/min) (L) Hexamethylene Diisocyanate 1,6-Hexamethylene Homopolymer; HDIH; Desmodur diisocyanate 5.2x10-9 N3300; PV2125 GFF homopolymer mmHg 1.0 15 1,6-Diisocyanato-Hexane PV 1-2PP 28182-81-2 @ 77 °F Homopolymer;
H130 Poly(hexamethylene diisocyanate) IPDI; Isocyanic acid, methylene Isophorene (3,5,5-trimethyl-3,1- 0.005 0.045
- 0003 15 diisocyanate cyclohexylene) ester; T T 0.005 PV2034 GFF mmHg 1.0 To 4098-71-9 3-Isocyanatomethyl-3,5,5- 0.02 0.18 T PV 1-2PP
@ 68 °F 60 1539 trimethylcyclohexyl-isocyanate; ST ST Isophorone diamine diisocyanate Methylene-bis(4-cyclohexylisocyana Hydrogenated MDI;
- 2x10-9 Dicylohexylmethane-4,4'- 0.01 0.11 0.005 PV2092 GFF te) diisocyanate; HMDI; Desmodur mmHg
C6 C6 T PV 1-2PP
- 0 15
5124-30-1 @ 77 °F
W 2651 1,5-Napthalene 0.005 0.04
- 003 diisocyanate 1,5-Naphthylene Ester Isocyanic T T PV2046 GFF mmHg 1.0 60 3173-72-6 Acid, Napthalene Diisocyanate 0.02 0.17 PV 1-2PP
@ 75°F
N119 C6 C6 Toluene-2,6-2,6-diisocyanato-1- 0.01
- 0055 Method 15 diisocyanate3 T GFF methylbenzene; mmHg 42 1.0 to
91-08-7 0.02 1-2PP
2,6-TDI @ 77 °F FV 240
T177 STEL CAS = Chemical Abstract System 1REL = NIOSH recommended exposure limit IMIS = Integrated Management Information System 2American Conference of Governmental Industrial Hygienists Threshold Limit Value 2010 C = 15-minute ceiling; T = 8-hour time-weighted average; ST = short- 3Toluene-2,6-diisocyanate is usually not found in a pure state and often occurs in a mixture of 80% term exposure limit; STEL = short-term exposure limit toluene-2,4-diisocyanate and 20% toluene-2,6-diisocyanate FV = fully validated method, PV is partially validated method 4NIOSH has designated toluene-2,4-diisocyanate as an occupational carcinogen with no safe exposure level GFF = glass fiber filter 5ACGIH TLV for toluene diisocyanate is for toluene-2,4- or 2,6-diisocyanate, or a mixture of the two: 1-2PP = 1-(2-pyridyl)piperazine Notice of Intended Change 0.001 ppm TWA, 0.003 ppm STEL Inhalable fraction and vapor. 6NIOSH Ceiling REL is a 10-min average
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[TABLE 32-1] Isocyanate CAS no. OSHA IMIS no. | Synonyms | Vapor Pressure | OSHA PEL | | Occupational Exposure Limits (OEL) | | | | OSHA Method no. | Sampling Medium | Flow Rate (L/min) | Sample Volume
(L)
| | | | | NIOSH REL1 | | ACGIH TLV® 2 | | | | | | | | ppm | mg/m3 | ppm | mg/m3 | ppm | mg/m3 | | | | 1,6-Hexamethylene diisocyanate homopolymer 28182-81-2 H130 | Hexamethylene Diisocyanate Homopolymer; HDIH; Desmodur N3300; 1,6-Diisocyanato-Hexane Homopolymer;
Poly(hexamethylene diisocyanate) | 5.2x10-9 mmHg
@ 77 °F | | | | | | | PV2125
PV | GFF
1-2PP | 1.0 | 15 Isophorene diisocyanate 4098-71-9 1539 | IPDI; Isocyanic acid, methylene (3,5,5-trimethyl-3,1-cyclohexylene) ester; 3-Isocyanatomethyl-3,5,5-trimethylcyclohexyl-isocyanate;
Isophorone diamine diisocyanate | 0.0003 mmHg
@ 68 °F | | | 0.005
T
- 02
ST | 0.045
T
- 18
ST | 0.005
T | | PV2034
PV | GFF
1-2PP | 1.0 | 15 To 60 Methylene-bis(4-cyclohexylisocyana te) 5124-30-1 2651 | Hydrogenated MDI;
Dicylohexylmethane-4,4'-diisocyanate; HMDI; Desmodur W | 5.2x10-9 mmHg
@ 77 °F | | | 0.01
C6 | 0.11
C6 | 0.005
T | | PV2092
PV | GFF
1-2PP | 1.0 | 15 1,5-Napthalene diisocyanate 3173-72-6 N119 | 1,5-Naphthylene Ester Isocyanic Acid, Napthalene Diisocyanate | 0.003 mmHg
@ 75°F | | | 0.005
T
- 02
C6 | 0.04
T
- 17
C6 | | | PV2046
PV | GFF
1-2PP | 1.0 | 60 Toluene-2,6-diisocyanate3 91-08-7 T177 | 2,6-diisocyanato-1-methylbenzene; 2,6-TDI | 0.01 mmHg
@ 77 °F | | | | | 0.0055
T
- 02 STEL | | Method 42
FV | GFF
1-2PP | 1.0 | 15 to 240
[/TABLE]
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ISOCYANATE SAMPLING, FIELD EXTRACTION, and SAMPLE
SHIPMENT PROCEDURES
Introduction
Chemicals containing the isocyanate functional group (-NCO) can contain more than one isocyanate group, for example toluene diisocyanate has two isocyanate groups, but as a class of chemicals they are often collectively referred to as isocyanates.
Except for methyl isocyanate which is extremely volatile and is sampled using coated adsorbent tubes, OSHA monitors workplace exposure to isocyanates using glass fiber filters that are impregnated with 1 milligram of 1-(2-pyridyl)piperazine (1-2PP). 1-2PP reacts with isocyanates to form a stable chemical derivative. These samples are normally extracted and analyzed by chemists at OSHA's laboratory in Salt
Lake City, Utah. OSHA compliance officers will now be instructed in how to perform field extraction of isocyanate samples when using filter sampling procedures. Methyl isocyanate samples do not have the same derivatization issues inherent in filter samples and they do not require field extraction.
This isocyanate sampling, field extraction, and sample shipment protocol is now standard operating procedure to be followed for this NEP. All area regional and field offices must follow this procedure.
Purpose of Field Extraction
The purpose of field extraction is to enhance the recovery of highly reactive isocyanates that are collected on the air sampler but for various reasons do not come into contact with the derivatization reagent coated on the filter. Such isocyanates may become unavailable for reaction with the 1-2PP reagent because of unwanted chemical side-reactions that occur during or after sampling. One way to bring collected isocyanates and the reagent into contact is to extract the samples immediately after sampling. Field extraction is of benefit only if it is performed immediately after sampling.
Apparatus
Personal sampling pump. A personal sampling pump that can be calibrated to within ±5% at the recommended flow rate with the sampling device in line.
Coated glass fiber filters. Glass fiber filters (GFF) coated with 1.0 mg 1-(2-pyridyl) piperazine (1-2PP).
Coated GFFs can be obtained from SLTC using the "SLTC Supplied Sample Media Order Form." Store the coated filters in a refrigerator until use. Avoid exposure of the coated filters to sunlight or heat.
Discard the coated filters if they are not used within a month after receipt from SLTC. VOSH employees can also obtain the coated adsorbent tubes used for methyl isocyanate from SLTC.
Field extraction solution. The field extraction vials each contain 3-mL of a solution composed of
90% v/v acetonitrile and 10% v/v dimethyl sulfoxide. CAUTION. These are both extremely toxic and flammable solvents (see MSDS). VOSH employees can obtain glass vials containing the correct volume of field extraction solution from SLTC in the same way that the coated filters were obtained. It is important to keep the packaging material in which the vials containing the extraction solution was shipped from SLTC for use to pack and return the vials to SLTC for analysis.
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Vial rack (tray) to hold extraction solvent vials, sized for 15-mm vials. Vial racks are used to secure the
field extraction vials because they may help prevent spilling of the solvent.
Backup (support) pads. 37-mm cellulose.
Polystyrene cassettes. Three piece, 37-mm standard with top, bottom, and ring pieces and end plugs.
Isocyanate sampler. Except for methyl isocyanate, OSHA's methods for isocyanates specify sampling using the filter cassette sampler shown in Figure 1. Assemble the three-piece polystyrene cassette containing a coated glass fiber filter and a backup pad as shown in Figure 1. Use disposable gloves and metal forceps to handle the filters. There is no
need to change gloves for each sampler to be assembled. Do not assemble more cassette samplers than expected to be used in a single sampling site visit. Do not expose the Figure 1. Isocyanate sampler. assembled isocyanate samplers to high temperatures or direct sunlight.
Disposable gloves. Disposable nitrile gloves such as Ansell "Touch N Tuff,” no. 92-600, are convenient and have good touch sensation properties. CAUTION. The Ansell "Touch N Tuff gloves are rated by the manufacturer as having excellent resistance to dimethyl sulfoxide, but only fair resistance to acetonitrile. Immediately change the gloves if you spill solvent on them. Equivalent gloves from another manufacturer can also be used.
Metal Forceps
Clean the forceps with isopropyl alcohol and wipe them dry before each use. Isopropyl alcohol obtained from a local pharmacy is adequate for cleaning purposes.
A six-pack cooler together with frozen ice packs (e.g., Blue-Ice type or equivalent) is a convenient and effective way to transport sampling and extraction media to and from the CSHO's office in a vehicle. This is a precaution intended to prevent degradation of the sampling media.
The Cincinnati Technical Center (CTC) has available an Isocyanates Sampling Kit (FES0001912) that has the equipment necessary to extract air samples in the field. These supplies can be ordered together as a kit, or each item can be ordered separately through CTC.
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[TABLE 34-1] Figure 1. Isocyanate sampler.
[/TABLE]
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Sampling Procedure
Sample open-face by removing the top piece and the end plug from the cassette sampler immediately before sampling.
Attach the cassette to the calibrated sampling pump with flexible tubing and position it in the workers breathing zone so that it is in an approximately vertical position with the open-face pointing down during sampling. Position the sampling pump, cassette and tubing so it does not impede work performance or worker safety.
Do not allow air being sampled to pass through any hose or tubing before entering the cassette.
Sample for the appropriate time using the flow rate shown in Table 2 of Appendix B.
Field Extraction Procedure
Wear disposable gloves for the following procedure and do not spill any of the solvent because this will affect sample results. Extract each sample separately and wear new gloves for each sample. CAUTION.
The extraction solution is extremely toxic and flammable (see MSDS). Immediately after sampling and in a clean location remove the coated filter from the cassette using clean forceps and place it in the glass vial containing the field extraction solution. If you spill any solvent on your gloves, replace them with new gloves immediately. Place the filter flat against the inside surface of the vial. Do not fold or crumple the filter. Immediately tightly seal the vial with the lined cap. Check to be certain that the cap on the vial is firmly tightened and does not leak. Vigorously shake the vial to wet the filter. Properly identify the sample and wrap each sample with a Form OSHA-21. Note any solvent spills on the Form OSHA-91A. Discard the backup pad and the polystyrene cassette in the regular trash.
Submit at least one blank sample with each set of samples. Extract and handle the blank sampler in the
same manner as the other samples except draw no air through it. Do not leave the cassette top off the blank sample while air samples are being collected. Briefly remove the top cassette piece from the blank sample and then immediately replace it and extract the sample.
Record sample air volume (in liters of air) for each sample, along with any potential interference such as anhydrides, amines, alcohols, and carboxylic acids on the Form OSHA-91A.
Waste from the field extraction procedure except for the extraction solvent can be disposed of as regular trash. The CSHO's office may want to keep unused coated filters if they will be sampling again within the next month otherwise they can be disposed of as regular trash. The extraction solvent should either be returned to SLTC for disposal or disposed of locally if the office has access to a hazardous waste handler (e.g., perhaps a local laboratory could dispose of the waste).
Shipping Procedure
Ship any bulk samples separate from the air samples.
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Use the same packaging material in which the vials containing the extraction solution was shipped from SLTC to pack and return the sample extraction vials to SLTC for analysis.
Submit the extracted samples to SLTC for analysis as soon as possible after sampling. As a precaution, store the samples in a refrigerator for up to 1 week if delay is unavoidable. The samples do not require refrigerated shipment. Be certain to follow all applicable hazardous materials shipping restrictions and requirements. Persons shipping hazardous goods must be trained and certified by an authorized contract carrier such as UPS or FedEx that has been approved by U.S. Department of Transportation (DOT).
CSHOs should check with their area director to obtain the required DOT Hazardous Goods training.
Resources
OSHA's sampling and analytical methods for isocyanates can be accessed and downloaded from OSHA's public website www.osha.gov. They are located under Chemical Sampling Information.
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Appendix C
Health Surveillance Form (Non-mandatory) – Isocyanate Exposure
Interviewer: Date
Worker Name
-
What was the month and year that you were hired at this company?
-
What is your job title?
3. Please describe your job duties
- How many hours per week do you work on average?
- In what area or areas of the plant do you work?
-
Have there been any recent changes to your immediate work environment or processes in your worksite? YES NO a. If YES, what has changed and when?
-
Do you use any of the following personal protective equipment while working or while in the work area? a. Respirator YES NO TYPE
b. Gloves YES NO TYPE c. Protective Clothing YES NO TYPE d. Eye Protection YES NO TYPE e. Other Protective Equipment (If worker answers YES, please list below):
Please ask the worker the following questions in regard to past and current medical conditions: (For YES responses, note the month and date of first diagnosis).
- Has a doctor ever told you that you have asthma? YES NO If YES, when did the doctor tell you this?
- Has a doctor ever told you that you have any of the following work-related conditions?
a. Work-related asthma - YES NO If YES, when did the doctor tell you this? b. Allergies from exposures at work - YES NO If YES, when did the doctor tell you this? c. Bronchitis from exposures at work - YES NO If YES, when did the doctor tell you this? d. Skin rash from exposures at work - YES NO If YES, when did the doctor tell you this? e. Hypersensitivity pneumonitis - YES NO If YES, when did the doctor tell you this?
(If the worker has been diagnosed with any work-related condition or has symptoms that may be associated with isocyanate exposure, consider asking the worker to sign a medical release to
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obtain a copy of the worker’s personal medical records or obtain a medical access order (MAO) for the worker’s employer medical records). 10. Please ask the worker the following questions regarding symptoms. (If worker answers NO, go to the next symptom. If the answer is YES, ask the questions across the row):
Do you think your Do your symptoms symptoms are If yes, Do your improve when you brought on by any approximately symptoms are away from work particular work Symptom YES NO what date did occur at such as while on activity, chemical you first notice work? vacation or on the exposure, or work symptoms? weekends? area? (Describe): (Describe): Cough Wheezing Watery or itchy eyes Nose stuffiness or itching Skin rash or itching Shortness of breath Chest tightness Fever or chills Not related to a cold or infection
- Have you missed any days from work because of respiratory symptoms? YES NO 12. Have you been restricted or transferred from one job assignment to another because of respiratory symptoms? YES NO 13. Have you informed anyone in management or supervision of symptoms related to isocyanate exposure? YES NO
Other Comments
C-2
[TABLE 38-1] Symptom* | YES | NO | If yes, approximately what date did you first notice symptoms? | Do your symptoms occur at work? | Do your symptoms improve when you are away from work such as while on vacation or on the weekends? (Describe): | Do you think your symptoms are brought on by any particular work activity, chemical exposure, or work area? (Describe): Cough | | | | | | Wheezing | | | | | | Watery or itchy eyes | | | | | | Nose stuffiness or itching | | | | | | Skin rash or itching | | | | | | Shortness of breath | | | | | | Chest tightness | | | | | | Fever or chills | | | | | |
[/TABLE]
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Appendix D
Sample Isocyanates Hazard Alert Letter
Note: This letter must be adapted to the specific circumstances noted in each inspection. The letter below is an example of the type of letter that may be appropriate in some circumstances. If the employer has implemented, or is in the process of implementing efforts to address problem conditions, those efforts should be recognized and encouraged, if appropriate.
Italicized comments are for VOSH compliance use only and should not be included in the letter.
Dear Employer
An inspection of your workplace and evaluation of your OSHA recordkeeping logs at (location) on (date) disclosed the following condition(s), which are consistent with employee exposure to (list isocyanate), a known occupational health hazard; (list conditions).
(Include a general description of the risk factors for each task/job associated with respiratory sensitization/asthma, such as lack of ventilation, lack of PPE, inappropriate PPE, etc.)
Even though sampling did not show exposures above an OSHA/VOSH permissible exposure limit, in the interest of workplace safety and health, I recommend that you voluntarily take the necessary steps to materially reduce or eliminate your employees' exposure to the conditions listed above.
While the risk of health hazards associated with exposure to isocyanates can be reduced or eliminated by implementing a single means of abatement, in most cases a variety of abatement methods will
provide a more effective method of addressing these hazards. These include workplace analysis of jobs and tasks to assess hazards associated with those jobs and tasks and the steps to abate them; product substitutions; engineering, administrative and work practice controls; accurate injury and illness recordkeeping; medical surveillance; medical management of occupational illnesses and injuries; education and training of employees; and management oversight. When respiratory sensitization, asthma or other hazards associated with isocyanate exposure are addressed on an incremental basis to determine the effectiveness of a specific control strategy, it is important to evaluate the effectiveness of the results in a timely manner. If the initial control strategy fails to eliminate or substantially reduce employee exposures, additional control measures should be implemented.
We have examined available information on the hazards associated with these jobs/tasks, and your efforts to address these hazards. The evaluation suggests that the following additional methods of abatement should be implemented.
- Engineering Controls
If substitution is not possible, engineering controls are the first line of defense in employee protection. Therefore, employers should provide appropriate engineering controls and should train their employees in their use and in proper work practices to ensure that employee occupational exposure to isocyanates are maintained below levels hazardous to employees.
The following engineering controls are recommended
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- (list possible engineering controls: local exhaust ventilation, automated process,
isolating the process, etc.)
- Administrative and Work Practices Controls
The following work practices should be used to ensure that occupational exposure to an isocyanate(s) during (list operation(s)) is (are) reduced:
- (List possible controls such as: limiting the time employees are exposed);
- (Job rotation);
- (Monitor employee exposures on a regular basis);
-
(Limit the number of employees who have access to areas where the operation occurs);
-
(Provide separate lockers for work clothes and street clothes);
- (Do not eat, drink, apply cosmetics or use tobacco products in work area(s));
- (Do not leave the workplace wearing protective work clothing or equipment or take it home to launder);
- (Wash face, hands, and forearms before eating, drinking, smoking, or applying cosmetics);
- (Shower at end of work shift);
- (Immediately and thoroughly wash off skin with soap and flowing water if dermal contact occurs);
- (Wear appropriate personal protective equipment);
-
(A medical surveillance program as described in Appendix I);
-
(Etc.)
- Personal Protective Equipment
To be effective, personal protective equipment must be individually selected; properly fitted and periodically refitted; conscientiously and properly worn; regularly maintained; and replaced as necessary. In addition, employers must:
-
Perform a workplace hazard assessment in accordance with §1910.132(d) (or equivalent construction or maritime standard) to determine if hazards are present, or are likely to be present which necessitate the use of personal protective equipment (PPE);
-
Provide and ensure the use of the appropriate gloves (e.g., butyl, nitrile), goggles, and protective clothing when a potential for eye or dermal exposure exists (e.g., exposure to
contaminated equipment, chemical containers, etc.);
-
Train employees on the limitations and use of PPE required during (list operations);
-
Establish, implement, and maintain a written respiratory protection program in accordance with §1910.134(c) whenever the employer requires the use of
respiratory protection;
-
Provide and ensure that employees use appropriate respiratory protection;
-
(Etc.).
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- Training and Information
Employers must comply with the OSHA Hazard Communication standard, §1910.1200. In particular, employers must ensure that employees exposed to isocyanates are trained in and have access to the following information:
- The specific nature of the operations in their workplace where exposure may occur;
- Safety Data Sheets (SDSs) for chemicals containing isocyanates;
- The signs and symptoms of isocyanate exposure;
- The importance of avoiding dermal contact when working with isocyanates;
- The engineering controls the employer is using to reduce employee exposures
to isocyanates;
- Specific work practices that should be used to reduce exposure to isocyanates;
- The use of appropriate protective equipment, including respirators and skin protection and the limitations of that equipment; and
- Methods that may be used to detect the presence of the isocyanates in the workplace, such as workplace monitoring.
In addition, the results of any air or wipe sampling the employer or others have conducted for levels of isocyanates should be shared with employees and/or their representative.
(Using the above components, together with information gathered during the inspection, describe the specific conditions or weaknesses and suggest methods of abatement.)
You may voluntarily provide this Regional or Field Office with progress reports on your efforts to address these conditions. VOSH may return to your worksite to further examine the conditions noted above.
Enclosed is a list of available resources that may be of assistance to you in preventing work-related injuries and illnesses in your workplace.
If you have any questions, please feel free to call [name] at [phone number].
Sincerely,
Regional Director
Enclosure
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Appendix E
Publications and Resources
OSHA publications are available online at http://www.osha.gov/pls/publications/publication.html. If you are unable to access the online publications and would like to place an order, please contact the OSHA Publications Office at 1-
800-321-OSHA (6742).
OSHA Online Resources
Safety and Health Topics Page on Isocyanates Safety and Health Topics Page on Occupational Asthma Safety and Health Topics Page on Hazard Communication Safety and Health Topics Page on Personal Protective Equipment Safety and Health Topics Page on Respiratory Protection Safety and Health Topics Page on Spray Operations Safety and Health Topics Page on Ventilation
Additional Safety and Health Topics Pages can be found online at OSHA Safety and Health Topics.
OSHA Publications
- Chemical Hazard Communication (No. 3084)
-
Hazard Communication Guidelines for Compliance (No. 3111)
-
Job Hazard Analysis Guide (No. 3071)
- Personal Protective Equipment (No. 3151)
- Small Business Handbook (No. 2209)
- Small Entity Compliance Guide for Respiratory Protection Standard (CFR 1910.134), (No. 9071.
OSHA/NIOSH Spirometry InfoSheet - http://www.osha.gov/Publications/osha3415.pdf OSHA/NIOSH Spirometry Worker Info - http://www.osha.gov/Publications/osha3418.pdf
OSHA Small Business Assistance
Small business owners who are concerned about the cost of professional help can contact the OSHA Consultation Project Office in their state for free consultation service. Priority is given to businesses with fewer than 250 employees at a worksite, with further consideration given to the severity of the worksite problem. The OSHA Consultation Program can help employers evaluate and prevent hazardous conditions in their workplace that can cause injuries and illnesses, including the hazards associated with exposures to isocyanates. For more compliance assistance information, please visit OSHA’s Small Business web page at http://www.osha.gov/dcsp/smallbusiness/index.html.
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National Institute for Occupational Safety and Health (NIOSH) Resources
NIOSH Safety and Health Topics Page on Isocyanates NIOSH Safety and Health Topics Page on Asthma and Allergies NIOSH Preventing Asthma & Death from MDI Exposure During Spray-on Truck Bed Liner and Related Applications, (Sept. 2006), DHHS Pub. No. 2006-149
Other Resources
Heederik, Derrick, Henneberger, Paul A. and Relich, Carrie A. (2012). “Primary prevention: exposure reduction, skin exposure and respiratory protection.” European Respiratory Review
21(124), 112-114. Available at: http://err.ersjournals.com/content/21/124/112.full.pdf
De Vries, Thomas, Bello, Dhimiter, Stowe, Meredith H., Harari, Homero, Slade, Martin D., and Redlich, Carrie A. (2012). “Transferability of Aliphatic Isocyanates from Recently Applied Paints to the Skin of Auto Body Shop Workers.” Journal of Occupational and Environmental Hygiene, 9, 699-711. Available at: http://www.ncbi.nlm.nih.gov/pubmed/23067057
Arrandale, V.H., Liss, G.M., Tarlo, S.M., Pratt, M.D., Sasseville, D., Kudla, I., Holness, D.L. (2012). “Occupational Contact Allergens: Are They Also Associated With Occupational Asthma?” American Journal of Industrial Medicine, 353-60. Available at: www.ncbi.nlm.nih.gov/pubmed/22238032
Bello, Dhimiter, Herrick, Christina A., Smith, Thomas J., Woskie, Susan R., Streicher, Robert P., Cullen, Mark R., Liu, Youcheng, Redlich, Carrie A. (2007). “Skin Exposure to Isocyanates: Reason for Concern.” Environmental Health Perspectives, 115(3), 328-335. Available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1849909/
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Appendix F
Sample General Duty Clause Citation Language
Where exposures to isocyanates exist and the conditions meet the elements of a 5(a)(1) [Va. Code §40.1-51.1.A.] violation, a General Duty Clause citation may be issued. Below is an example of language to use for a 5(a)(1) ) [Va. Code §40.1-51.1.A.] citation.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 [Va. Code §40.1-51.1.A.]: The employer did not furnish a place of employment that was free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees in that employees were exposed to (chemical
name), which was causing or likely to cause respiratory illness such as asthma or skin sensitization:
a. On or about (date), (list employee titles, or names) working in the (name area(s)) was/were exposed to (name chemical). Exposures occurred via (list routes of entry: inhalation, ingestion, dermal absorption, etc.) at concentrations of (list exposure levels, surface/dermal contamination levels).
The employer could feasibly adopt measures that would be effective in reducing or eliminating employee exposure to (name chemical) and the associated risk of developing (asthma or other effects of exposure/disease). Examples of such measures may include:
-
Engineering controls including (if applicable, list relevant engineering controls, such as local exhaust ventilation, substitution, etc).
-
Administrative and work practice controls, including (if applicable, list relevant administrative and work practice controls, such as rotation, cleaning working surfaces, maintenance of engineering controls, medical monitoring, etc).
-
Personal Protective Equipment, including (if applicable, list relevant PPE).
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Appendix G
General Guidance for Employers on Personal Protective Equipment (including Respiratory Protection) for Worker Exposures to Isocyanates
The following information is adapted for this NEP based on information obtained from the Region 2 Isocyanate Local Emphasis Program.
Employers are required to make a hazard assessment of their workplace to determine what kinds of personal protective equipment (PPE) their employees need for protection against isocyanates. The types of PPE selected will be influenced by a number of factors, such as the specific job functions of the worker and the chemical resistance of the PPE. An effective PPE program greatly increases the effectiveness of protective gear. See Parts 1910 Subpart I (General Industry), 1926 Subpart E (Construction), 1915 Subpart I (Shipyard), and 1918 Subpart J (Longshoring).
Specific Job Functions
The nature of the job being performed will greatly influence the selection and features of protective clothing. For example, workers that are analyzing foam samples in a laboratory may require light-duty gloves (at least 5 millimeters in thickness) that are flexible and preserve manual dexterity. The potential for worker exposure is limited to a localized area and may only require gloves and either a lab apron or lab coat, in addition to eye protection. In contrast, a maintenance project, such as repairing a
pump line, may require workers to wear thicker gloves that are rugged and durable, as well as hooded chemically-resistant overalls and boots.
General Principles of Personal Protective Equipment Selection
- The item must be suitable for the job the worker is to perform.
- The item must offer a protection time that exceeds potential exposure times.
- The item must be replaced before protection time is exceeded.
- Disposable items are preferable to reusable ones, because of contamination/decontamination issues.
Chemical Resistance of Glove or Clothing
To be effective, the protective clothing must resist permeation and penetration by the chemical or chemicals being handled. Use of disposable gloves and clothing is preferred because proper decontamination of reusable items is often difficult. The employer should request documentation from the manufacturer or distributor specifying if the protective equipment meets the appropriate test standard(s) for the type(s) of chemical(s) used in the workplace. For example, some isocyanates may be part of a solvent mixture, so the gloves must protect against the solvent also.
The protection time of PPE is an important selection consideration. Protection time is the time required for a chemical to permeate or make its way through the chemical protective glove or clothing material, and is the material’s maximum use time. Keep in mind that isocyanates are often found as a mixture with other chemicals, especially solvents. Gloves and clothing may be affected by solvents, which can
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reduce the time it takes for solvents and isocyanates to permeate the glove material. PPE
manufacturers are able to provide protection times for their equipment. It is important for the wearer to understand the need to change gloves and clothing often enough to avoid exceeding manufacturers’ stated protection times and to prevent skin contact with isocyanates. The manual dexterity requirements of some jobs require the use of thin, form-fitting gloves. These may offer limited amounts of protection time, so use of such gloves is acceptable only if the gloves are changed with sufficient frequency. For example, if a job requires the use of thin, flexible gloves with a 30-minute protection time for isocyanates, then the wearer should change gloves within 30 minutes from initial contact with the isocyanate-containing compound.
Eye and/or Face Protection
Based on the operation, either safety goggles or a face shield may be required when working with isocyanates.
Respiratory Protection – General
An effective written respiratory protection program must be developed and implemented in accordance with §1910.134. Key provisions include assignment of a program administrator, fit testing, medical evaluations, proper use of respirators, training and information (including the need for a user seal check each time the respirator is donned), maintenance and care of respirators, program evaluation and recordkeeping.
Respirator Evaluation and Selection
The employer is required to select the appropriate respirator for each situation in which employees are exposed to isocyanates above the PEL or at any level that poses a recognized hazard of death or serious injury or illness to workers. Some factors that must be included in the evaluation by the employer are as follows.
A. The concentration of isocyanates in the air to which employees will be exposed must be considered. MDI and TDI have OSHA Ceiling Limits; Methyl Isocyanate has an 8-hour TWA PEL.
See Appendix B. Other isocyanates have been evaluated by other organizations and have occupational exposure limits such as the NIOSH REL or ACGIH TLV. Paragraph 1910.134(d)(3)(i) requires the employer to “provide a respirator that is adequate to protect the health of the employee and ensure compliance with all other OSHA statutory and regulatory requirements under routine and reasonably foreseeable emergency situations.” Therefore, when selecting a respirator for protection against substances that have TWA PEL or Ceiling Limits, the employer must not only consider if exposure levels may be reached or exceeded during routine operations, but also if they may be exceeded during reasonably foreseeable emergency situations. The employer must then select a respirator that would provide adequate protection against these levels.
B. Negative pressure respirators carry a greater risk of leakage than positive pressure respirators.
If the face-to-facepiece seal is compromised (e.g., because of beard growth), more contaminated air is likely to leak in than would be the case with positive pressure respirators.
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The protection factor of the respirator needs to be taken into account when selecting a respirator.
Paragraph 1910.134(d)(3)(i)(A) discusses the protection factors of the respirators. The respirator chosen must protect the employee from the concentration of isocyanate to which they are being exposed.
Paragraph 1910.134(d)(1)(i) states, “the employer shall select and provide an appropriate respirator based on the respiratory hazard(s) to which the worker is exposed and the workplace and user factors that affect respirator performance and reliability.”
Paragraph 1910.134(d)(3)(iii)(B) further states that for protection against gases and vapors at levels that are not Immediately Dangerous to Life or Health (IDLH) an air-purifying respirator may be used, provided that:
-
The respirator is equipped with an end-of-service life indicator (ESLI) certified by NIOSH for the contaminant; or
-
If there is no ESLI appropriate for conditions in the workplace, the employer implements a change schedule for canisters and cartridges that is based on information or objective data that will ensure that canisters and cartridges are changed before the end of their service life. The employer shall describe in the respirator program the information and data relied upon and the basis for the change schedule and the basis for reliance on the data.
OSHA anticipates that some employers who perform the required evaluation will determine that air-purifying respirators (APRs) are appropriate for their circumstances. Others may prefer to provide powered-air purifying respirators (PAPRs). APR and PAPR cartridges also need to be changed out. See below on change-out information. Under some circumstances, other employers may determine that Supplied-Air Respirators (SARs) may be the only appropriate type of respirator for these hazards, especially in high-exposure industries like automotive painting.
Respirator Cartridges and Change-out Schedules
The Respiratory Protection standard, §1910.134, does not permit the use of warning properties as the
sole basis for a cartridge change-out schedule. In addition, isocyanate- containing compounds do not have appropriate sensory warning properties. For atmospheres which are not IDLH, APRs are now considered acceptable as long as appropriate precautions and change-out schedules are in place. See §1910.134(d)(3)(iii)(B).
Currently, there are few respirator cartridges or canisters available on the market with ESLI, and none for isocyanates. An employer must select a cartridge or canister recommended for the chemical(s) against which the cartridge or canister is meant to protect employees. The employer must then implement a change schedule for the canister or cartridges that is based on objective information or data that will ensure that the canister and cartridges are changed before the end of their service life.
The data relied upon and the information forming the basis of the determination must be included in the written respirator program. If more information becomes available, an employer would be expected to review and, if necessary, revise the change-out schedule. Further information on change out schedules may be found at http://www.osha.gov/SLTC/etools/respiratory/change_schedule.html.
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6 The International Isocyanate Institute sponsored a study to determine the effectiveness of air-purifying respirator cartridges in removing MDI aerosols from air. They concluded that:
-
Organic vapor cartridges without a particulate filter were not effective at removing MDI aerosols from air;
-
Organic vapor cartridges with dust/mist (DM) or high efficiency (N100) filters effectively removed greater than 99% of MDI aerosol and vapor in all test atmospheres; and 3
- Formation of MDI aerosols was evident even at very low (<100ug/m ) total MDI concentrations.
Other PPE Information
Isocyanate vapors are corrosive and severely damaging to the eyes. Contact may cause permanent eye damage. If a half-mask respirator is selected, an employer would also be required under §1910.133(a)(1) to ensure that the employee uses appropriate eye and face protection.
Vapors of isocyanates may cause skin irritation and sensitization. The employer is required under Parts 1910 Subpart I (General Industry), 1926 Subpart E (Construction), 1915 Subpart I (Shipyard), and 1918 Subpart J (Longshoring) to assess the workplace and select appropriate personal protective equipment.
Additional personal protective equipment to protect the skin of the face and neck may be required if an
employer elects respirators which leave these areas exposed.
Exposure to diisocyanates can cause various respiratory ailments. If an employee using an APR reports any medical signs or symptoms which could be attributed to isocyanate exposure, the employer must take appropriate action. Paragraph 1910.134(e)(7)(i) requires additional medical monitoring if an employee reports medical signs or symptoms related to the ability to use a respirator.
Employee Training on PPE
Personal protective equipment can be effective only if the equipment is selected based on its intended use; employees are trained in its use; and the equipment is properly tested, maintained, and worn.
Teaming the proper personal protective equipment with a good training program can give the worker a large measure of safety where other controls are inadequate or impossible. Train your employees to know:
- Why hand, arm, and body clothing, and respiratory protection are necessary – i.e., why isocyanates are a hazard that require skin and breathing protection;
- How the PPE will protect them;
6 Information on the International Isocyanate Institute, Inc. may be found at www.diisocyanates.org.
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- The limitations of the protective equipment you have supplied;
- When a worker must wear the protective equipment;
- How to wear the protective gloves, sleeves, and clothing properly;
- How to ensure a comfortable and effective fit;
- How to identify signs of wear, such as cracks, scrapes or lacerations, thinning or discoloration, or break-through to the skin; and
- How to clean and disinfect reusable protective gloves, sleeves, body clothing, and respiratory protection.
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Appendix H
General Guidance for Employers on Medical Surveillance Program Information for Worker Exposure to Isocyanates
A medical surveillance program for workers exposed to isocyanates should be developed, supervised and monitored by a physician who is Board Certified/Board Eligible in any of the following:
- Occupational Medicine • Family Medicine
- Pulmonology/Pulmonary Medicine • Allergy and Immunology (especially
- Internal Medicine if focused on asthma care)
General recommendations for an isocyanates medical sureveillance program include7:
• Preplacement, annual and exit general medical examinations with
o Special emphasis on the respiratory tract o A medical history including an extensive work history, history of pre-existing respiratory conditions such as asthma, and a smoking history. o Spirometry (more information for employers and employees can be found on the Spirometry Information sheet (http://www.osha.gov/Publications/osha3415.html) and Spirometry Worker Information sheet (http://www.osha.gov/Publications/osha3418.html)).
-
Workers with a history of respiratory conditions should be informed of the potential for increased health risks associated with exposure to isocyanates.
-
Isocyanate-sensitized individuals should be assigned to work in areas where exposure to isocyanates is
not expected.
Examples of medical surveillance programs
-
Michigan State University’s “Recommended Medical Screening Protocol for Workers Exposed to Occupational Allergens” http://www.oem.msu.edu/userfiles/file/Resources/asthmaprotocol.pdf
-
Asthma Initiative of Michigan’s Recommended Medical Screening Protocol for People Exposed to Work-Related Allergens http://www.getasthmahelp.org/work-related-asthma-screening.aspx
General Occupational Medicine Resources
Association of Occupational and Environmental Clinics (AOEC) - http://www.aoec.org/
Workplace Health and Safety Queensland Designated Doctor Program: Isocyanate health surveillance guidelines: www.deir.qld.gov.au/workplace/resources/pdfs/ddp-isocyanateguide.pdf
_____ 7 These recommendations can be found at http://www.michigan.gov/documents/cis_wsh_cet5045_90179_7.doc
H-1
Interpretation of OSHA Medical and First Aid StandardDoc ID: 06-150
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VOSH PROGRAM DIRECTIVE: 06-150 Issued: December 12, 1986 Renumbered: August 15, 2005
SUBJECT: Standard Interpretation of 1910.151(b), Medical and First Aid
A. Purpose.
This revised directive is updated to remove outdated references and renumbered to conform to the revised VOSH Program directives’ new classification and numbering
system (See VOSH Directive 01-001A).
This directive transmits to field personnel an interpretation received from Federal OSHA concerning the meaning of the words “in near proximity” contained in §1910.151(b), Medical and First Aid Standard.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the
force of law.
B. Scope.
This directive applies VOSH-wide.
C. Action.
Directors and Managers shall ensure that employers comply with the requirements of §1910.151(b), Medical and First Aid Standard, and the Federal OSHA interpretation
which was received by VOSH on November 4, 1986 (attached).
D. Cancellation.
VOSH Program Directive 12-150 (December 12, 1986).
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E. Background.
(See attached letter dated October 8, 1986, requesting an official standards interpretation of §1910.151(b).)
F. Enforcement Guidelines.
- Summary of Interpretation.
The interpretation states that the words “in near proximity” contained in §1910.151(b) have been interpreted by case law to generally mean “3 to 4 minutes from a medical facility.”
In the absence of a medical facility within 3 to 4 minutes of an employer’s establishment, §1910.151(b) requires that “a person or persons shall be adequately trained to render first aid.”
C. Ray Davenport Commissioner
ATTACHMENTS: Federal OSHA Interpretation of §1910.151 (b) Received by VOSH on November 4, 1986.
VOSH Request for Interpretation of 1910.151 (b) Dated October 8, 1986.
DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner - Programs Directors and Managers VOSH Compliance Staff Cooperative Programs Staff Legal Support Staff OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
2
First Report of Injuries and Illnesses Inspection ProgramDoc ID: First
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DOLI Virginia Occupational Safety & Health VOSH
VOSH PROGRAM DIRECTIVE: 14-005C ISSUED: 18 December 2014
SUBJECT: First Report of Injuries and Illnesses (FRI) Local Emphasis Program (LEP)
Purpose CHANGE I: This revision updated old references and renumbered this LEP to conform to the revised VOSH program directives’ classification and numbering system (See VOSH Directive 01-001A).
CHANGE II: This revision updates this LEP to require inspections in cases where previously a phone/fax investigation may have been undertaken.
CHANGE III: This revision updates this LEP to require inspections where there is an in-patient hospitalization of one (1) or more employees;
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This directive applies VOSH-wide.
Reference Not Applicable.
Cancellation VOSH Program Directive 14-005B (01 February 2005)
Effective Date 18 December 2014
Action Directors and Managers shall ensure that policies and procedures established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
Expiration Date Not Applicable.
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & Norfolk Area Offices Legal Support & IMIS Support Staffs
1
[TABLE 1-1]
| | DOLI Virginia Occupational Safety & Health VOSH | | | |
DOLI | | | | VOSH | |
| DOLI | DOLI | | | VOSH |
[/TABLE]
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I. Background
The First Report of Injuries and Illnesses (FRI) Local Emphasis Program (LEP) has been formally established since 1993. Of the 434 inspections conducted under this program from 1998 to 2002, sixty seven percent (67%) of worksites inspected were noncompliant and forty five percent (45%) of these worksites had serious, willful or repeat violations. These results are significantly higher than the results produced with general schedule programmed inspections.
II. Procedures.
The Director of VOSH Programs shall ensure that each Regional Director develops an establishment list for first reports of injuries and illnesses (FRI). VOSH Headquarters will provide, on a regular schedule, copies of FRI reports to the regions for screening and selection of employers to place on the establishment list.
FRI forms will be reviewed by the regional office to find those reports which involve:
-
Fatalities;
-
In-patient hospitalization of one (1) or more employees;
- Loss of limb(s) or loss of sight (total or partial), including one or more joints of a finger;
- Numerous injuries of the same type at the same establishment within a short period of time (e.g., six (6) months);
-
Accident sites reported by the media, other government agencies or healthcare workers; and
-
Any injury directly related to an objective in VOSH’s Strategic Plan
An inspection will be conducted of each of the reported accidents that meet the above criteria. Fatal accidents shall be inspected immediately when the cause of the accident appears to be occupationally-related (i.e., where a VOSH standard or the general duty clause may apply). The employer may be requested to provide OSHA 300 logs, in addition to other accident-related information.
Inspections conducted under this program directive will be given a priority immediately below that of Imminent Danger inspections.
III. Database Entry Coding. The majority of inspections conducted under this LEP will be “Health” inspections and, in such cases, should be coded as such.
A. Planned/Targeted Inspections. LEP inspections of firms that are planned or targeted as a result of this LEP inspection type will be coded as “Programmed Planned” and then classification coded as an LEP, specifically indicating “FRI”.
B. Referral Inspections. Inspections that are conducted as a referral under this LEP will be coded as “Programmed Related” and then classification coded as an LEP, specifically indicating “FRI”. Where “Program Related” inspections are conducted, they will be so indicated on the VOSH-1.
C. Complaint inspections. Inspections under this LEP that are conducted as a result of a complaint or
fatality/catastrophe will be coded as “Unprogrammed Related” and then classification coded as an LEP, specifically indicating “FRI”.
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IV. Evaluation.
An annual evaluation of the program, either on a fiscal or calendar year basis, may be made to assess its efficiency and effectiveness in carrying out its specified mandate during the previous year. Such evaluation will incorporate:
A. Statistical Information. Basic statistical information consisting of number of inspections conducted, number and types of violations issued, geographic distribution of establishments, company size, incident rate, number of no-inspections, number of contests and number of denials of entries.
B. Problems. Any special problems which may have surfaced and any new solutions.
C. New Procedures. Any procedures developed by a regional office which may be helpful to other regions.
D. Comments/Recommendations. Any other issues, comments or ideas regarding the LEP and recommendations for its change, continuance or elimination.
3
Trenching and Excavation Safety EnforcementDoc ID: 14-203
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VOSH PROGRAM DIRECTIVE: 14-203 ISSUED: March 3, 1986 REISSUED:April 1, 2003
SUBJECT: Special (National) Emphasis Program: Trenching and Excavation
A. Purpose.
This revision updates old references and renumbers this emphasis program to conform to the new program directives’ classification and numbering system (See VOSH Directive
01-001A).
This directive continues a National Emphasis Program (NEP) in which VOSH will participate for the programmed safety inspection of trenching and excavation operations in accordance with the VOSH FOM.
This program directive is an internal guideline not a statutory or regulatory rule and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This Program Directive applies VOSH-wide.
C. Reference.
OSHA Instruction CPL 2.69 (September 19, 1985).
Note: References in this instruction to the old federal Field Operations Manual (FOM) are struck through followed by references to the 2002 VOSH FOM.
D. Cancellation.
VOSH Program Directive 02-203 (March 3, 1986)
--- Page 2 ---
E. Action
Directors and Managers shall ensure that the policies and procedures established in this directive to facilitate uniform enforcement are adhered to in conducting inspections.
F. Effective Date
April 1, 2003
G. Expiration Date
Not applicable.
H. Background
This program directive is based on the publication of OSHA Instruction CPL 2.69, (September 19, 1985), pertaining to trenching and excavation.
I. Summary
Trenching and excavation work is a double-edged hazard: (1) it is inherently dangerous, mainly due to cave-ins, and (2) it is not always held to standards of compliance because it is usually temporary. There is a general belief in the regulated community that this kind of work, because it is short-term, will go undetected.
Success in handling inspections of this kind of operation is not just by following the normal FOM procedure, but by being constantly on the lookout for such worksites, which come and go quickly. This program directive addresses the special procedures necessary for scheduling inspections of trenching and excavation. (See F.1.(b) of attachment.)
______ C. Ray Davenport Commissioner
Attachment: OSHA Instruction CPL. 2.69, September 19, 1985 or refer to
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1653 &p_text_version=FALSE
Distribution: Commissioner of Labor and Industry Directors and Compliance Managers VOSH Compliance Staff Cooperative Programs Staff Legal Support Staff OSHA Regional Administrator, Region III OSHA Regional Office, Norfolk
2
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
29 CFR VOSH Standard
Regional Administrator Commissioner of Labor and Industry
Area Director Region Director
Regional Solicitor Attorney General or VOSH Office of Legal Support (OLS)
Agency Department
Office of Statistics VOSH Research and Analysis
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
Field Inspection Reference Manual (FIRM) VOSH Field Operations Manual (FOM)
3
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OOccccuuppaattiioonnaall SSaaffeettyy && HHeeaalltthh AAddmmiinniissttrraattiioonn OOSSHHAA UU..SS.. DDeeppaarrttmmeenntt ooff LLaabboorr
OSHA Directives CPL 2.69 - Special Emphasis: Trenching and Excavation
Record Type: Instruction Directive Number: CPL 2.69 Subject: Special Emphasis: Trenching and Excavation Information Date: 09/19/1985 ____________
OSHA Instruction CPL 2.69 September 19, 1985 Office of General Industry
Compliance Assistance
Subject: Special Emphasis Program: Trenching and Excavation
A. Purpose. This instruction establishes a National Emphasis Program (NEP) for the programmed safety inspection of trenching and excavation operations in accordance with the provisions of the Field Operations Manual (FOM), Chapter II, E.2.b. (4) [see Chapter I, B.2.c. of the 2002 VOSH FOM].
B. Scope. This instruction applies OSHA-wide.
C. Action. Regional Administrators and Area Directors shall ensure that the procedures
established in this instruction are adhered to in scheduling programmed inspections.
D. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:
-
Ensure that this change is promptly forwarded to each State designee.
-
Explain the technical content of this change to the State designee as requested.
-
Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing, within 30 days of notification, to the Regional Administrator. This acknowledgment should include a description either of the State's plan to implement the change or of the reasons why the change should not
apply to that State.
- Review policies, instructions and guidelines issued by the State to determine if
1
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this change has been communicated to State program personnel. Routine monitoring activities shall also be used to determine if this change has been implemented in actual performance.
E. Background. Because of the continuing incidence of trench/excavation collapses and accompanying loss of life, the agency has determined that an increased OSHA enforcement presence at worksites where such operations are being conducted is warranted.
- Trenching and excavation work creates hazards to workers which are extremely dangerous. Compliance with OSHA construction standards applicable to such
operations is frequently bypassed because of economic pressures, a belief that compliance is unnecessary or an expectation that these short-term operations will go undetected.
-
Although it would be expected that, after more than 12 years of enforcement activity, most employers would be adhering to shoring and sloping requirements, experience has shown that such is not the case. OSHA believes that the rate of deaths and serious injuries resulting from trench/excavation accidents (mostly cave-ins) can be significantly affected only by a concentration of compliance resources within the area of trenching and excavation operations.
-
Currently 6 of OSHA's 10 Regions are already conducting local emphasis programs in this area. These local emphasis programs are all similar in nature.
The decision has been made to replace these programs with a National Emphasis Program extended to all Regions.
- The construction scheduling procedures outlined in the FOM cannot be used in scheduling inspections of trenching and excavation operations because the timing of such inspections is extremely important. These operations tend to begin and end quickly and must be inspected while they are in operation. Consequently, the following procedures are prescribed in scheduling these inspections.
F. Procedures.
- All compliance personnel shall be instructed to be on the lookout for trenching or excavation worksites. Every observation of such operations shall be handled as follows:
a. Regardless of whether or not a violation is observed, whenever a CSHO sights or receives any other notice of a trenching or excavation operation (including nonformal complaints, other government agency referrals, and reports from members of the public), the CSHO shall:
2
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(1) Make note of the state and condition of the work operation insofar as it is known, including any apparent serious hazards.
(2) Note the name and address or location of the worksite and the contractor performing the operation, if known.
(3) Contact the Area Office supervisor for a decision as to whether an inspection is required.
b. All trenching and excavation worksites brought to the attention of the Area Office shall be inspected as follows:
(1) If the worksite has been inspected within the last 30 days, the results of the inspection shall be considered along with the current observations of the CSHO.
(a) If trenching/excavation work was not in progress during the last inspection and there are apparent serious violations present at the current site, the supervisor shall authorize an inspection.
(b) If trenching/excavation work was in progress during the last inspection, the supervisor shall authorize an inspection only if apparent serious violations are present or can reasonably be expected at the current site.
(2) If the worksite has not been inspected within the last 30 days, an inspection shall be conducted unless it is apparent that the trench or excavation is less than 5 feet in depth or is in compliance with all OSHA standards governing such operations
c. Reports of imminent danger, fatality/catastrophe reports, formal complaints, safety and health agency referrals and media reports shall be scheduled as unprogrammed inspections, conducted as described in the relevant chapters of the FOM.
d. Nonformal complaints and other referrals involving trenching or excavation operations shall be scheduled as unprogrammed inspections
under the NEP, conducted in accordance with procedures found in Chapter IX of the FOM [see Chapter I of the 2002 VOSH FOM]. Such notices, therefore, need not be responded to with the usual letter to the employer. e. An inspection scheduled under this NEP does not necessarily need to be inspected by the person making the original observation. A CSHO referral may be appropriate under the guidelines given in the FOM,
3
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Chapter IX, B [see Chapter 1, C. 13 of the 2002 VOSH FOM].
-
The discovery of these worksites may be the result of a specific search to find this type of operation, at the discretion of the Regional Administrator. Although sightings normally will be those which occur during the course of routine travel during duty or nonduty hours, Regional policy may provide that the Area Director saturate areas of high construction activity for the purpose of identifying all trenching and excavation sites within that area as far as reasonably possible verification of information received from sources other than CSHO observation, as indicated in F.1.a. is also permitted under this NEP.
-
Documentation of the events leading up to the observation or the reporting of the trenching or excavation worksite shall be maintained by the Area Office in case of denial of entry.
-
When an inspection is not conducted because consent has not been obtained, a warrant normally shall be sought in accordance with the current procedure for handling such cases. A warrant may not be necessary, however, if the violations are in plain view. In such situations, the Regional Administrator shall contact the Regional Solicitor for guidance.
-
If the CSHO initially observing the work operation involving a trenching or excavation operation sees an apparently serious hazard in plain view, and if it is not convenient to contact the supervisor at the time, an inspection shall be conducted and the supervisor informed as soon as practical after the inspection
has been completed.
-
The scope of inspections conducted under this NEP shall normally be limited to the trenching or excavation operation. If the inspection is to be expanded, the principles given in the FOM, Chapter VII, C.1.b. and d. [see Chapter IIA, A.3 of the 2002 VOSH FOM] shall be followed.
-
When conducting inspections in trenching or excavation operations, CSHOs shall be alert to the presence of minors who may be employed at such worksites.
Because the Employment Standards Administration (ESA) has regulations related to the employment of minors between 16 and 18 years old in hazardous occupations (Hazardous Occupations Order No. 17), any indication during a trenching or excavation inspection that minors are so employed shall be reported
as soon as reasonably possible to the Area Director who shall relay this information to the nearest Wage-Hour Area Office immediately upon receipt.
The Regional Administrator shall be informed whenever such a referral has been made.
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G. Recording in IMIS. The following guidelines shall be applied when recording inspections conducted under this NEP or other inspections where trenching or excavation operations are found:
- Current instructions for completing the appropriate inspection classification boxes (Items 24 and 25) on the Inspect ion Report, VAOSH-1 Form, as found in the IMIS Manual shall be followed for inspections under this NEP.
a. The VAOSH-1 for any programmed inspection scheduled under the procedures in the FOM, Chapter II, E.2.b. (2) [see Chapter I, D.2 of the 2002 VOSH FOM] shall be marked "Planned" (Item 24h.),
"Construction" (Item 25a.) and "National Emphasis Program" (Item 25d.).
Record "TRENCH" in the space in Item 25d.
b. The VAOSH-1 for any programmed inspection scheduled under this National Emphasis Program shall be marked "Planned" (Item 24h.) and "National Emphasis Program" (Item 25d.) Record "TRENCH" in the space in Item 25d.
c. The VAOSH-1 for any unprogrammed inspection of a trenching or excavation operation shall be marked as unprogrammed (Item 24 a. through g. as appropriate) In addition it shall be marked National Emphasis Program" (Item 25d.). Record "TRENCH" in the space in Item 25d.
- Nonformal complaints, other government agency referrals and reports from the public reporting potential hazards related to trenching or excavation operations shall be recorded on an OSHA-7, Notice of Alleged Safety or Health Hazards, or an OSHA-90, Referral Report, if appropriate, in accordance with current IMIS instructions. They shall be recorded as unprogrammed inspections under the NEP as outlined in G.1.c.
I. Full-Service Program Support. The Area Office is encouraged to develop outreach programs which will support the enforcement effort. Such programs might consist in letters to employers who engage in trenching or excavation operations explaining the hazards involved and what OSHA standards require. Wide publicity could be given to the National Emphasis Program. Fatality reports involving accidents related to trenches or excavations could be widely distributed in the construction industries. Attention
should be focused on the assistance offered by the 7(c)(1) consultation projects in the State.
Patrick R. Tyson Acting Assistant Secretary
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DISTRIBUTION: National, Regional and Area Offices All Compliance Officers State Designees 7(c)(1) Project Managers NIOSH Regional Program Directors
6
Virginia Wage Payment and Overtime LawsDoc ID: Division
--- Page 1 ---
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER TEN PAYMENT OF WAGE
Last Revised 3/22
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Section 1.00 Coverage
Virginia’s Payment of Wage Law is contained in § 40.1-29 of the Code of Virginia. Virginia’s Overtime Law is contained in § 40.1-29.2 of the Code of Virginia. It applies to all private industry employers operating a business in the Commonwealth. Public sector employees are
not covered by the Payment of Wage Law (see § 40.1-2.1 of the Code of Virginia), but are subject to the Virginia Overtime Wage Act. Neither law applies to work performed on Federal properties or enclaves.
A. Pay Periods
-
Hourly employees must be paid every other week or at least twice a month.
-
Salaried employees must be paid at least once a month.
-
Executive employees are exempt from the requirements in Numbers 1 and 2 above; however, they must be paid on their established pay day.
B. Time of Payment
As a general rule, all hours worked in any pay period must be paid on the established pay date.
Agency policy allows employers time to establish payroll accounts for new hires; however, payments to new hires may not be delayed for a period longer than is reasonably necessary to allow for payroll accounts and employee elections for withholdings to be determined. In no event may payment be delayed beyond the next payday.
C. Pay Stubs
- Employers are required to provide each employee a written statement, by a paystub or
online accounting that shows the following: a. The name and address of the employer, and b. The number of hours worked during the pay period if the employee is paid on the basis of either:
1
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i. the number of hours worked, or II. a salary that is less than the salary level adopted by regulation of the US DOL pursuant to 29 USC § 213(a)(1).
-
The paystub or online accounting shall include sufficient information to enable the employee to determine how the gross and net pay were calculated
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An employer engaged in agricultural employment including agribusiness and forestry shall furnish the employee a written statement of the gross wages earned by the employee during any pay period and the amount and purpose of any deductions therefrom upon request of its employee.
D. Money That Is Collectible
An employee has to be paid his or her established rate of pay for every hour actually worked.
This includes but is not limited to the following
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Wages
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Salaries
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Commissions
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Piece-work rates
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Tips withheld by the employer
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Overtime Wages (effective July 1, 2021)
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Mileage rates (not expense mileage reimbursements); and
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Money withheld and not remitted to a proper entity. This frequently occurs when health premiums are deducted from an employee’s wages and the employer fails to distribute such deducted amounts to the insurance carrier.
E. Money That Is Uncollectible
- Fringe benefits. Fringe benefits includes such items as the following: a. Vacation pay b. Severance pay c. Sick pay
d. Holiday pay e. Any other benefit provided for by company policy.
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Note: An employer cannot offer such benefits and then later deduct the money from the employee’s wages for actual hours worked. Department policy is that should an employer give an employee money for a benefit that was earned under a written company policy for such benefit, the employer cannot later deduct such amounts from money identified as owed to the employee for time actually worked. The Compliance Officer will review all relevant facts including any written policies, frequency of pay periods, and length between granting of the benefit and monetary
recovery by the employer. This rule does not apply to advances on wages (§ 40.1-29.A). On the other hand, if the employer advances money to an employee for benefits not yet earned under company policy, the employer may deduct the amount from money identified as owed for time actually worked.
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Work performed in the capacity of independent agent or subcontractor.
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No employer-employee relationship.
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Claims exceeding $25,000.
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Cases in litigation or cases where claimants have hired counsel.
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Claims of officers, executives, partners, and directors.
F. Overtime Wages
On July 1, 2021, Va. Code § 40.1-29.2 went into effect, which requires employers to pay overtime wages for all hours worked over 40 per week. Overtime wages are determined as one and one-half times an employee’s regular rate of pay. Unless explicitly adopted in the statute, FLSA exemptions and regulations are not adopted into the Virginia Overtime Wage Act.
- Overtime pay for tipped and commission employees are calculated based on the state minimum wage, unless an employment agreement guarantees a higher rate. For example, if the minimum wage is $9.50, hours over 40 per week must be compensated at $14.25 per
hour. The value of tips and commissions earned by the employee count toward this required compensation.
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Salaried, non-exempt employees’ overtime rate is calculated as one and a half times 1/40th of their weekly salary for all hours worked in excess of 40 hours a week.
-
Overtime is calculated based on hours worked for that employer. If an employee works
multiple positions or jobs with one employer, that employee must be paid overtime wages for all hours worked over 40. To calculate the regular rate for an employee who works multiple positions at different pay rates, it can be calculated by calculating the regular wage for the entire number of hours worked, dividing that total by the hours worked, and applying the overtime rate to that rate.
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For example, an employee works 30 hours a week for one employer at $15 an hour doing one job, and an additional 20 hours a week with the same employer making $20 an hour.
To calculate the “regular rate” for purposes of calculating overtime, do the following:
- 30 x $15 = $450
- 20 x $20 = $400
- $400 + $450 = $850
- $850/50 = $17
-
$17 x 1.5 = $25.5
-
All hours worked over 40 would be paid at the regular hourly rate + $8.50 an hour (difference between the regular rate and the overtime rate).
- Total Wages = $935
Section 2.00 Accepting Wage Complaints for Work Performed in Virginia
A. Wage complaints will be accepted and investigated in situations where the following has occurred:
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An out-of-state employer hired a Virginia resident to perform work in Virginia.
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An in-state employer hired an out-of-state resident to perform work in Virginia.
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An out-of-state employer hired an out-of-state employee to perform work in Virginia.
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An in-state employer hired an in-state employee to perform work in Virginia.
B. Wage complaints will generally not be investigated in situations where the following has occurred:
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An in-state employer hired a Virginia resident to perform work out of state.
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An out-of-state employer hired a Virginia resident to perform work out of state.
Note: An exception to this general rule would exist in situations where an employee performed work for a single employer in more than one state. If employment agreement was entered into in the state of Virginia for all work performed, the total employment situation would be covered by Virginia law. For example, if an accounting firm hired an auditor whose job requires the employee to travel and perform tasks in multiple states including Virginia and the agreement was entered
into in Virginia, the Division would investigate the claim.
C. Claims Intake Processing
The Labor and Employment Law Wage Unit receives all claims filed with the Division. Claims will be reviewed for completeness and jurisdiction. Complex claims requiring additional review will be reviewed by Senior Staff for acceptance or denial of the claim. If for any reason a claim
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cannot be pursued by the Division, claimants will be notified by letter of the reason. Claims accepted for investigation will be entered and assigned to Compliance Officers in the Labor Law Claim Tracking System.
Section 3.00 Wage Procedure (Civil) Labor Law Compliance Officer shall investigate complaints alleging violations of § 40.1-29 in
accordance with the procedures established in this manual. In obtaining initial information from the employer, the Compliance Officer shall attempt to ascertain the legal entity involved and the number of employees working at the time of the investigation. This information is necessary in order to calculate the reductions for size of the business for the Civil Monetary Penalty (“CMP”) Report.
Compliance Officers, Leads, and Supervisors shall, to the extent possible, conduct investigations primarily by telephone, fax, e-mail, and U.S. mail. Travel shall be limited to those situations in which an investigation cannot otherwise be pursued effectively or reasonably and only upon prior approval of the supervisor shall any travel be undertaken.
A. Employer Notification of Wage Claim Received.
Upon assignment of a wage claim for investigation the Compliance Officer shall attempt to interview the claimant. The interview will clarify, verify, and expand any statement of facts provided on the claim for wages form. Then the employer shall be notified via telephone of the complaint and all available details as well as the statutory authority for the investigation (§ 40.1-29F). The employer will be interviewed concerning the facts of the claim as presented by the
claimant. If the investigation cannot be resolved via telephone the Compliance Officer shall proceed to a formal investigation. A series of notices shall be prepared and executed. The first notice is to be sent by U.S. First Class mail.
B. Notification of the Compliance Officer’s Determination.
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If the Compliance Officer is uncertain as to the validity of the claim, the Compliance Officer shall request guidance from the Supervisor.
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If the Compliance Officer determines that the claim is clearly not valid, the Compliance
Officer shall notify all parties via telephone or in writing with appropriate documentation to the case tracking log.
- If the Compliance Officer determines that the claim is valid and that the Code of Virginia has been violated, the Compliance Officer shall notify the employer with a Determination letter. This letter shall be mailed by both first-class mail and by certified mail, return receipt requested. Where appropriate and with prior approval of the Supervisor, the
compliance Officer may attempt to personally deliver this letter to the employer in lieu of service by mail. If personal service is made, delivery by mail is not required.
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Before preparing this letter, the Compliance Officer shall complete the CMP Calculation Report.
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In accordance with the terms of the Determination letter, the Civil Monetary Penalty will be waived if the wages are paid within 15 calendar days of the employer’s receipt of the letter if the employer is not a repeat offender.
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Whenever under this section an act is required to be done within 15 days of receipt of notice which has been sent by both certified mail and first-class mail, and the certified letter is not signed for, the deadline shall be calculated by adding 3 days to allow for mail delivery time. In such a case, therefore, the deadline will be the 18th calendar day following the date the notice was mailed.
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Employers shall be instructed to whom checks are payable, and where they are to be sent.
C. Expansion of Payment of Wage Investigations
VA Code § 40.1-29.1 authorizes the Department of Labor and Industry to expand investigations in which there is “a reasonable belief that other employees… may not have been paid wages in accordance” with § 40.1-29. If evidence is found that other employees were so affected, the Department will institute proceedings on behalf of those employees, and may do so without a written complaint.
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If, during the course of an investigation, a Compliance Officer has a reasonable belief that other employees were not paid wages, the Compliance Officer shall inform the Supervisor of their belief for consideration of expansion.
-
The following are some possible indicators that an investigation should be expanded: a. The company is a repeat offender or has previously had a determination against them, b. Interviews with the claimant or the employer indicate that it may have happened to others, c. Company policy or handbooks suggest the sort of action is done as general practice, d. Inconsistencies in the form and date of payment
e. The company does not provide paystubs in accordance with § 40.1-29, f. There is suspicious activity during the investigation, including non-cooperation with compliance officer’s requests.
- Investigative Procedure a. If the Supervisor approves the investigation, the Compliance Officer shall send the employer the Expanded Payment of Wage Investigation Letter. This letter shall
request for all relevant employees or classes of employees dating back six weeks from the original claim (unless existing information suggests another date): i. Schedules
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II. Payroll Records III. Paystubs IV. Time Cards v. Employee Handbooks, VI. Latest Contact Information for all relevant employees during that timeframe.
b. All investigation letters shall include: i. A copy of § 40.1-29 II. A copy of § 40.1-29.1 III. A copy of § 40.1-29.2 (if applicable) IV. A copy of § 40.1-33.2 (Payment of Wage Anti-Retaliation Law). c. Employers shall be given 15 calendar days to respond to the request, plus three additional days to account for mail delivery.
d. Compliance Officers shall review the received documents for any additional payment of wage claims. e. If documents suggest a long-term issue, Compliance Officers may request additional documents dating back further to understand the scope of the claim. f. The Compliance Officer shall attempt to interview any potential claimant using the contact information received from the employer. g. If employer refuses to cooperate with document requests, the Compliance Officer
shall inform the Supervisor, who may begin proceedings to file a subpoena in the local circuit court.
- Determinations a. Determinations for expanded investigations shall follow normal procedures. b. Civil Monetary Penalties for expanded investigations will be determined on a case-by-case basis, based on the severity and pervasiveness of the conduct, not to exceed
the statutory $1,000 per violation.
- Compliance Officers shall follow the remaining Payment of Wage procedures for offering informal conferences, filing Final Orders, etc.
D. Informal Fact Finding Conference
- Upon the written request of the employer, an informal fact finding conference shall be conducted. The Compliance Officer shall notify the supervisor upon receipt of any written request for an informal conference. The Compliance Officer shall schedule the conference as soon as possible after the employer’s request is received by the Labor and Employment Law Division Office. If the employer fails to agree to a conference date within 5 business days from the time he or she is asked to agree to a date, a date for the conference shall unilaterally be selected by the Department and the employer shall be notified in writing of
the scheduled time for the conference. The Department’s efforts to schedule the conference shall be thoroughly documented by the Compliance Officer. A reasonable effort shall be
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made to conduct the informal conference within 15 calendar days after the date the employer requests the conference. Any additional evidence to be considered must be submitted to the Compliance Officer prior to any informal fact finding conference with a written explanation as to why it was not provided during the course of the investigation.
- The conference shall be presided over by the Hearing Officer, Assistant Director, or by the
Labor Law Manager. In the conference the parties shall be granted the following rights: a. To have reasonable notice thereof; b. To participate via telephonic conference call or to be represented by counsel or other qualified Representative, for the informal presentation of factual data, argument, or proof; c. To be informed briefly and in writing of the factual or procedural basis for an adverse decision in any case.
- The conference shall be conducted via telephone conference call in most cases. The complainant shall be invited to participate in the informal conference, and a reasonable effort shall be made in scheduling the conference to permit the complainant to attend. The complainant shall be advised that no evidence will be accepted after the conference. The Compliance Officer shall attend the conference. The Compliance Officer will prepare and provide a fact-based statement and identify documents concerning all investigative actions
taken and findings that led to the determination.
- The Presiding Labor Law official may request security for any informal fact-finding conference the Department holds in person, if deemed necessary. The Presiding Labor Law official shall receive relevant information which either party chooses to submit. The Presiding Labor Law official shall prepare a typed memorandum to the case file, listing the participants who were in attendance at the conference, and summarizing the employer’s
defenses and any other matters discussed during the conference.
E. Notification of the Presiding Official’s Determination of the Informal Fact-Finding Conference:
- Following the informal conference the presiding official shall, if he or she finds the Complaint to be invalid, inform the complainant in writing of this determination. If the
presiding official finds the complaint to be valid, he or she shall inform the employer in writing. The letter shall be sent by both first Class mail and certified mail, return receipt requested. The letter shall concisely explain the reason for the determination, and the reason why the employer’s argument, if any, was not accepted. The determination of the presiding official shall be final and is not subject to appeal.
- If the employer is not a repeat offender, the Civil Monetary Penalty will be waived if the
wages are paid within 15 calendar days of the employer’s receipt of the Determination letter, and the employer signs the Consent Agreement Form.
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- When an employer fails to appear for a scheduled informal conference, and the presiding officer is of the opinion that the claim is valid, the presiding officer may instruct the Compliance Officer to prepare Final Orders for wages and any additional liquidated damages, and a Civil Monetary Penalty.
F. Entry of Final Order
- In appropriate cases under this section, the Compliance Officer shall prepare Final Orders.
Separate orders shall be prepared for the payment of wages and interest and attorneys’ fee and for assessing a civil monetary penalty and attorneys’ fees. A wage order and a penalty order shall be prepared. A Final Order Case Summary shall also be prepared by the Representative.
-
The Final Order Case Summary, the Wage Claim CMP Calculation Sheet, and Final Orders shall be reviewed, approved and signed by the Division Director.
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Original copies of all Final Orders issued by the Commissioner shall be entered into a Wage Claim Order Book maintained in chronological order by the staff at headquarters Office.
Note: Some courts may require the original for recordation.
G. Certification of Final Orders
- Compliance Officers shall prepare the certification of the Final Order, which is printed on the reverse sides of the Final Wage and Final Penalty Orders.
- The certifications with the signed Final Orders shall be docketed by the Compliance Officer
with the Circuit Court(s).
H. Recording Final Orders and Closure of Case
After the Certification(s) and Final Order(s) are returned to the Compliance Officer, they shall record the Orders with the Circuit Court in the jurisdiction(s) in which the employer conducted business, and in all other jurisdictions in which the employer may have real
property if known. After recording the Orders, the Compliance Officer shall close the investigative case file.
I. Collection of Civil Monetary Penalties, Wages, Liquidated Damages, Interest and Attorneys’ Fees 1. After docketing the Final Orders, collection activity shall be initiated. The cases will be
sent for collection to attorneys approved by the Attorney General’s Office. If no attorney is available and the total dollar amount of the case (wage and penalty order together) is under $3,000, the case may be sent to a collection agency.
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If a tax ID number has been made available by the Compliance Officer, the case shall be sent to the state tax set-off program in addition to the collection attorney or collection agency.
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If the collection efforts of the collection attorney or collection agency fail because of either (1) bankruptcy, (2) the employer has no assets, (3) the employer’s whereabouts cannot be determined, or (4) other documentation supplied to the Department by the collection attorney or collection agency, the penalty amount will be written off in accordance with the State and Department procedures.
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Attorneys’ Fees: Each Final Order entered by the Commissioner will include an award of one-third of the wage, liquidated damages, and the penalty amount for attorneys’ fees, up to a maximum of $25,000.
J. Write-Off Request for Civil Monetary Penalty
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When advised by the collection attorney or collection agency that no assets are available to satisfy the Final Order, the Headquarters Office will use the agency’s write-off form to submit this information to the Accounts Receivable Coordinator to have the civil monetary penalty approved for write-off. Presently, the write-off is being approved by the Program Director.
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In addition to bankruptcy and establishment of the fact the employer has no assets to levy on, the Headquarters Office shall also prepare a write-off request for the penalty when the employer cannot be located. The documentation should describe all efforts made by the
collection attorney or collection agency to locate the employer.
K. Pre-judgment Attachment
If there is reason to believe the employer is attempting to hide or remove assets from the Commonwealth in an attempt to defraud the claimant(s), the Compliance Officer should immediately bring the matter to the attention of the Supervisor.
L. Penalty Calculations; Waiver of Penalties
- A Civil Monetary Penalty shall be assessed in each case in which an employer knowingly failed to make payment of wages in accordance with §§ 40.1-29 or 40.1-29.2 of the Code of Virginia, unless waived under other provisions of Division policy. Ignorance of the law does not mean an employer “unknowingly” failed to make payment. If the employer was
aware of the amount being paid to the employee, and if that amount was insufficient under the law, the employer has “knowingly” failed to make payment of wages in accordance with §§ 40.1-29 or 40.1-29.2.
- Before calculating a civil monetary penalty, the Compliance Officer shall check Department records to determine whether the defendant has had a previous violation. A Final Order, a final court judgment, or a previous consent agreement constitutes evidence of a previous violation.
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-
All civil monetary penalties shall be calculated by the Payment of Wage Civil Monetary Penalty Calculation Report. A separate sheet shall be used for each claimant.
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Each separate pay period in which an employee works and is not paid on or before the established payday for that pay period is a separate violation of the Payment of Wage Law.
Civil Monetary Penalties calculated with the calculation sheet where there are multiple pay period violations may result in inappropriately large Civil Monetary Penalties, however, and in such cases the Compliance Officer should bring such cases to the Program Director’s attention.
- A “repeat offender” is a defendant for whom there is a legally final court Judgment or a Department of Labor and Industry Order determining the defendant to be in violation of the Virginia Payment of Wage Law, or an employer who previously signed a consent agreement. “Final” means all statutory proceedings and/or legal appeals have been
exhausted. Violations which occurred 3 years or more before the present violation, shall not be considered for determining whether an employer is a repeat offender.
- A repeat offender shall be assessed a civil monetary penalty of $1000 per violation, and shall not be offered a waiver of the penalty for prompt payment of wages.
- The Civil Monetary Penalty as calculated on the Penalty Calculation Report shall be the
standard penalty assessed. No greater amount shall be assessed. In the interest of justice, the Program Director may reduce a standard civil monetary penalty by up to 50%. The Program Director may, subject to review by the Commissioner, reduce a penalty by any amount, including assessing no penalty.
- In any case in which the standard civil monetary penalty is reduced, a written statement explaining the reasons for the reduction shall be placed in the file. Reasons for reducing a penalty include, but are not limited to, obvious or demonstrated financial hardship or inability to pay of the employer, the degree of good faith by the employer in attempting to comply with the law and in attempting to properly compensate employees, and whether the
assessment of a penalty would serve the purpose of deterring the defendant or others from obeying the Payment of Wage Law in the future. One example of the latter would be in a situation in which the culpable employer is deceased or permanently disabled or, in the case of a corporation, where the corporation has ceased business and is unlikely to resume active status.
M. Interest Calculation
- Interest may be calculated using the following method: a. Multiply the Wages Due by .08 (8%). The figure that results is the Yearly Payment
Interest. b. Divide the Yearly Interest by 365 (number of days in a year). This figure equals the Daily Interest amount. c. Multiply the Daily Interest amount by the number of days the wages are overdue. d. The result is the Total Interest Due the claimant.
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- If wages need to be collected over more than one pay period, the correct amount of interest due must be determined by repeating the interest calculation for each affected pay period.
Once the Compliance Officer has completed a series of individual interest calculations, the separate interest due amounts must be added together to arrive at the total interest due the claimant.
- All Final Orders must specify that interest shall accrue at eight (8) percent from the date the wages were legally owed to the complainant.
N. Attendance by Compliance Officers at Court Hearings: Subpoenas
-
In cases prosecuted by a Commonwealth’s Attorney, the Attorney General, or other attorney engaged by the Commonwealth, a Compliance Officer shall appear at trial on request of the attorney whether or not a subpoena has been issued.
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No Compliance Officer shall appear at any other court hearing or trial unless he or she has received a subpoena from the court compelling attendance.
-
Compliance officers should notify the staff attorney if they receive a subpoena.
Section 4.00 Wage Procedure (Criminal) A. Possible Indicators of Criminal Prosecution
Va. Code § 40.1-29(d) states, “an employer who willfully and with intent to defraud violates this section shall be guilty of a misdemeanor.” The following represent examples of situations that may warrant criminal prosecution:
-
Repeat offenders of violations of § 40.1-29.
-
Fraudulent disposal of company assets by employer.
-
Refusals to pay wages.
B. Reporting of possible criminal violations
When the Compliance Officer is of the opinion that an employer is willfully and with the intent to defraud withholding wages from an individual, he should bring the matter to the attention of the Supervisor. If the Supervisor agrees that an employer acted willfully with the intent to defraud, the claim should be sent to the Division for further review and consultation with the Director. The Commonwealth’s Attorney should prepare and submit the necessary forms and
motions. The Compliance Officer should be prepared to give testimony and appear in court as requested by the Commonwealth’s Attorney.
Section 5.00 Methods of Wage Payment
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A. Employers may utilize direct deposit for payment of wages to an employee provided the following guidelines are adhered to:
-
Advanced, written consent of the employee is secured.
-
Consent is voluntarily given.
-
Consent may be revoked by the employee in writing.
-
The employee is allowed to designate the bank or financial institution and the type of account to which the wages are to be deposited.
-
Written consent is maintained on file by the employer.
-
Funds are made available in the designated account on or before the date he employee would have received the wages absent his or her consent to participate in the direct deposit system.
-
No service, processing, or administrative charge is incurred by the employee.
B. Check Cashing Employers may make arrangements for employees to cash their checks only at the bank or financial institution where the employer has established a payroll deposit account for such
purpose, provided the employee does not incur any expense or difficulty.
Examples of such expense or difficulty are
-
A service, administrative, processing, or other charge to employees for withdrawing their funds.
-
Requirement that the employee establish and maintain an account with the designated bank or financial institution of the employer.
-
The designated bank or financial institution is inconveniently located so that the employees cannot withdraw their wages on or before the established pay day. (This method of payment can be used by the employer without the voluntary and written consent of the employee, because a check is being drawn in the name of the employee.).
C. Employers may pay wages using pay cards, provided they comply with the following:
-
The employee was hired after January 1, 2010.
-
The wages are deposited into a trust account on which the employee is a named beneficiary.
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-
Employees are able to make at least one free withdraw or transfer of their funds per pay period of any amount, up to and including the total amount in the card.
-
The employee is not required to maintain an account at any financial institution.
-
This method of payment can only be offered to the employee, but not required, unless the
employee has failed to designate a financial institute to which wages may be paid electronically.
- The employer may not charge a fee to the employee to use a pay card. Any such deductions will be considered forfeitures and violations of the payment of wage law. The card agreement between the employee and financial institution may include transaction fees after the initial free withdraw per pay period, but those fees are not to go to the employer.
Section 6.00 Deceased Wage Claimants
Wage claims for deceased employees will be accepted as follows
-
If the deceased employee left a will, the Executor would complete and submit the Statement of Claim for Unpaid Wages on deceased behalf and provide a copy of the Certificate of Qualification.
-
If the deceased employee died without leaving a will, the individual qualifying as the Executor would complete and submit the “Statement of Claim for Unpaid Wages” on
behalf of the deceased.
- In the event the claim cannot be resolved informally and a Final Order is issued by the Commissioner amount owed, the order should be styled as follows:
“Commissioner, Virginia Department of Labor and Industry on behalf of ‘(name of the Executor or Administrator of the Estate of the ‘name of the deceased person’)’ and ‘(name of Executor or Administrator of the Estate of ‘name of deceased person’).’”.
Section 7.00 Uniforms
A. Definition of “Uniforms”
- If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the
employees would not be considered to be uniforms.
- Where an employer does prescribe a specific type and style of clothing to be worn at work
(e.g., a restaurant or hotel establishment requires a tuxedo, or a skirt and blouse or jacket of a specific or distinctive style, color, or quality) such clothing would be classified as uniforms.
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-
Clothing that would only be worn by an employee of the particular establishment, such as uniforms designed to be worn by employees of fast-food restaurants meet the definition of uniforms.
-
Other examples of uniforms would be those required to be worn by guards, cleaning personnel, and hospital and nursing home personnel.
B. Uniform Requirements 1. Regardless of whether the wearing of uniforms is required by law, required by the
employer, or by the nature of the work, etc., the employer can require employees to pay all costs of the uniforms, provided that the employees’ wages do not fall below the applicable federal or state minimum wage or federal overtime rate after the deduction for uniform charges is made.
-
To be consistent with the requirements of the federal Fair Labor Standards Act, employees must be paid at least the applicable federal or state minimum wage and/or the federal overtime rate for all hours worked. When determining the wage rate, the cost of purchase, rental, or maintenance of uniforms will be factored into the calculation (i.e., total wages paid less the cost of uniforms must equal minimum wage for all hours worked.).
-
The employer may require the employee to pay the up-front costs of uniforms, may charge the employee a monthly rental or maintenance fee, and may ask the employee to pay for the uniforms through a withholding of wages.
-
If the employee is asked to pay the costs associated with uniforms via a wage deduction, written and signed authorization is required per § 40.1-29(C).
-
Provided the uniforms required to be worn are made of “wash and wear” materials, may be routinely washed and dried with other personal garments, and do not require ironing or any other special treatment such as dry cleaning, the employee can be required to maintain the uniforms. Costs of in-home maintenance care would not be factored as a wage
reduction for the purpose of determining the minimum wage.
- If an employer supplies or reimburses the employees for a sufficient number of uniforms
to be worn, and an employee elects to purchase additional uniforms in excess of the required number, the employer can require the employee to pay for the costs of the uniforms and to sign a written agreement for the deductions to be made from his/her wage for the purchase of the additional uniforms. The costs would not be factored as a wage reduction for the purpose of determining minimum wage. The cost, however, must be reasonable or the fair market value and may not include a profit to the employer or any other affiliated person.
Section 8.00 Taken-But-Not Earned Paid Vacation Benefits and Other Fringes
A. Paid Time-Off Accrual
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-
Often employers allow employees to take paid vacation before the time has been accrued under company policy. If the employer has paid all moneys owed at the time the employee leaves the employer’s company, the employer may deduct the value of the vacation time that had not accrued at that time.
-
If the employee has received full pay for all time worked, a written and signed authorization is not required.
-
The Department will not pursue cases involving unpaid paid time off that had accrued by the time the employee has left the employer. The employee must pursue those claims individually.
Section 9.00 Discretionary Bonuses Versus Wages
Discretionary bonuses are not considered wages, and thus cannot be collected under § 40.1-29. Non-discretionary bonuses may be considered wages and can be collected, and no illegal deductions may be made from them.
A. Characteristics of “Discretionary Bonus” 1. A “discretionary bonus” is hereby defined to be any benefit, whether received in cash,
goods and services, or otherwise, which is not required to be given under the employment contract, and which may therefore be given or withheld at the employer’s discretion. The term “discretionary bonus” does not include any compensation which the employee was reasonably led to believe the employer was obligated to pay him upon completion of work performed.
-
The employer retains discretion with respect to the fact of payment without prior promise or agreement.
-
The employer retains discretion with regard to the sum, if any, to be paid without prior promise or agreement.
B. Characteristics of a “Non-discretionary Bonus”
- The employer promises to pay a sum in advance, and the sum is related to work to be
performed.
-
The employer determines how the sum amount will be derived prior to payment.
-
The sum is promised to employees as a result of a contract, either implied or written.
-
The sum is promised as an incentive to cause the employee to work more steadily, more efficiently, more rapidly, to remain with the employer, etc.
-
An employment contract does not have to be in writing. Furthermore, a contract may be implied. If an employer regularly compensates employees on an incentive basis depending on work performed or sales made, there may be an implied contract obligating the employer to pay on that basis. The entirety of the employer-employee relationship must be examined to make this judgment.
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- The use of the term “bonus” is not controlling and the underlying employment relationship must be examined in order to determine whether an uncollectible discretionary bonus is involved.
Section 10.00 Executive Personnel The Department of Labor and Industry adopts the federal definition of “executive personnel”
as set out in the U. S. Department of Labor, Wage and Hour Division, Regulations, C.F.R., Part 541: Defining the Terms “Executive,” “Administrative,” “Professional” and “Outside Sales.”
An employee is considered an executive employee under FLSA using either the “long test” or “short test.”
Long Test
-
The primary duty consists of the management of the enterprise in which he or she is employed or of a customarily recognized department of subdivision thereof;
-
Customarily and regularly directs the work of two or more other employees;
-
Has the authority to hire or fire other employees, or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight;
-
Customarily and regularly exercises discretionary powers;
-
Does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his or her hours of work in the workweek to activities which are not directly and closely related to the performance of the work in 1 - 4 above; and
-
Is compensated for his or her services on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging, or other facilities.
Short Test
-
Is compensated for his or her services at a guaranteed salary of $684 or more a workweek, exclusive of board, lodging, or other facilities;
-
Primary duty (50 percent or more) consists of management of the enterprise in which the employee is employed, or of a customarily recognized department or subdivision thereof; and
-
Customarily and regularly directs the work of two or more other employees.
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C. Should the Compliance Officer be uncertain as to whether a claimant is an executive, they shall consult their supervisor.
Section 11.00 Work Performed D. “Suffered or permitted to work”
Work not requested but “suffered or permitted” is work performed. For example, an employee may voluntarily continue to work without being requested to by the employer. If the employer knows or has reason to believe the employee is continuing to work, this qualifies as “work
performed” under § 40.1-29. This may also apply to work performed away from the site of the employer’s place of business, i.e., at home, if the employer has knowledge that the work is being performed. In all such cases, it is the duty of management to exercise control to assure that unwanted work is not performed. Management cannot accept the benefits of an employee’s labor without compensating that employee. If management adopts a rule that the employee cannot perform work after certain times, management must enforce the rule or compensate the employee for any work after hours.
B. Waiting Time
- General
Whether waiting time is work performed depends upon particular circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.
- On Duty If an employee is required to remain at the employer’s place of business during periods of inactivity, this is considered work performed under § 40.1-29. The employee is being “engaged
to wait.”
- Off Duty
Periods during which an employee is completely relieved from duty and which are long enough to enable him/her to use the time effectively for his /her own purposes are not periods during which work was performed. The employee is relieved from duty when told he/she may leave
the job and that he/she will not have to commence work until a definitely specified hour has arrived.
- On-call time - Employer’s Premises
An employee who is required to remain on call on the employer’s premises or so close thereto that he/she cannot use the time effectively for his/her own purposes is performing work while
on call. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his/her home or with company officials where he/she may be reached is not performing work while on call.
- On-call time - Employee’s Home
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--- Page 19 ---
Where an on-call employee performs services for his/her employer at home and yet has long periods of uninterrupted leisure during which he/she can engage in the normal activities of living, DOLI will accept any reasonable agreement of the parties for determining the number of hours worked. As an example, this policy will apply to an “on-call” employee who is required by his/her employer to remain at his/her home to receive telephone calls from customers when the company office is closed. The agreement should take into account not only
the actual time spent in answering the calls but also some allowance for the restriction on the employee’s freedom to engage in personal activities resulting from the duty of answering the telephone.
C. Lectures, Meetings, and Training Programs
- Attendance at lectures, meetings, training programs, and similar activities is not work performed if the following four criteria are met:
a. Attendance is outside of the employee’s regular working hours;
b. Attendance is voluntary;
c. The course, lecture, or meeting is not directly related to the employee’s job; and
d. The employee does not perform any productive work during such attendance. 2. Involuntary Attendance
Attendance is not voluntary, of course, if it is required by the employer. In fact, it is not voluntary if the employee is given to understand or led to believe that his/her present working conditions or the continuance of his/her employment would be adversely affected by non-attendance.
- Training Directly Related to Employee’s Job
The training is directly related to the employee’s job if it is designed to make the employee handle him/her job more effectively as distinguished from training him/her for another job, or to a new or additional skill. For example, a secretary who is given a course in personal computers is engaged in an activity to make him/her a better secretary. However, if the
secretary takes a course in investigative techniques, it is not directly related to his/her job.
Thus, the time he/she spends voluntarily in taking the investigative techniques course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his/her skill in doing his/her regular work.
- Independent Training
Of course, if an employee on his/her own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his/her employer even if the courses are related to his/her job.
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- Apprenticeship Training As an enforcement policy, time spent in an organized program of related, supplemental
instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met: a. The apprentice is employed under a written apprenticeship agreement or program
registered with the Apprenticeship Division of the Department of Labor and Industry.
b. Such time does not involve productive work or performance of the apprentice’s regular duties.
If the above criteria are met, the time spent in such related supplemental training shall not be
counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.
D. Travel Time
- General
An employee who travels from home before the regular workday and returns home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment.
This is true whether the employee works at a fixed location or at different job sites. Normal travel from home to work is not work performed.
- Travel in a Day’s Work
Time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, is considered work performed. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work. It must be a requirement of the employer, however, that the employee report
to a designated site. If upon arriving at the designated place at the beginning of the workday, the employee is given the option of driving his/her own vehicle to the job site, the employer is not required to pay him/her for travel time from the last work site in the workday to his/her home. Of course, those employees required to drive company vehicles to the job sites would have to be paid for travel time both at the beginning and ending of the workday.
- Home to Work on Special One-Day Assignment in Another City
When an employee works in one city and is given a special one-day assignment in another city, such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer and at the employer’s request to meet the needs of the particular and unusual assignment. It is treated like travel that is all in the day’s
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work. However, the time that the employee normally spends in commuting on an ordinary workday could be deducted from hours worked.
- Travel Away from Home Community Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is considered work performed during the hours which constitute the
employee’s normal workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on non-working days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work performed on Saturday and Sunday as well as on the other days. Time spent in travel away from home and outside regular working hours is not counted as hours worked.
- When Private Automobile is Used in Travel Away from Home Community
If an employee is offered public transportation but requests permission to drive his/her car instead, the employer may count as work performed either the time spent driving the car or the time the employer would have had to count as hours worked during working hours if the employee had used the public conveyance.
- Operating Employer’s Vehicle for Employee’s Convenience
a. In certain situations, an employee is responsible for a vehicle and its equipment and for having it at the work site at the proper time. The employer may permit the employee to drive the vehicle to and from home. In situations of this type where the permission is granted for the employee’s own convenience and the travel is within the normal commuting distance of employees in the area, time spent in driving is not hours worked.
b. Where the vehicle is also used in connection with emergency calls outside of normal working hours, a determination must be made as to whether use of the vehicle is in fact for the convenience of the employee or primarily for the benefit of the employer. The
frequency of emergency calls may indicate for whose convenience or benefit the vehicle is being used.
- Driving Employer’s Vehicle Transporting Other Employees
a. Driving time is not considered hours worked in instances where an employee elects to transport other employees to and from work and such employee is driving the employer’s
vehicle for his/her own convenience. b. On the other hand, where the driver is directed by the employer to report to the company warehouse, garage, or yard as a pickup point, then time spent driving the employees from such point to the workplace is hours worked. c. Drivers of “vanpools” need not be paid for time spent transporting other employees to and from work under the following conditions:
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(1) The transportation provided must be primarily for the benefit of participating employees. (2) Participation in the program is entirely voluntary and employees are free to accept or reject the arrangement at any time. (3) The employee-driver is chosen by the participating employees. (4) The pickup times and route are established by the participating employees.
(5) The employer has virtually no control over the arrangement.
E. Sleeping Time and Certain Other Activities
- Less Than 24-Hour Duty
Under certain conditions an employee is considered to be working even though some of his/her time is spent in sleeping or in certain other activities. Any employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. It makes no difference that the employee is furnished sleeping facilities; the time is given to the employer. The employee is required
to be on duty and constitutes work performed.
- Duty of 24 Hours or More
Where an employee is required to be on duty for 24 hours or more and adequate sleeping facilities are provided, a period of no more than 8 hours can be deducted from hours worked for sleep time. If the sleeping period is interrupted by a call to duty, the interruption must
be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. For enforcement purposes, the rule is that if an employee cannot get at least 5 hours’ sleep time during the scheduled period, the entire time is working time.
- Employees Residing on Employer’s Premises or Working at Home
An employee who resides on the employer’s premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he/she may leave the premises for purposes of his/her own.
F. Adjusting Grievances, Medical Attention, Civic and Charitable Work and Suggestion Systems
- Adjusting Grievances
Time spent in adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked, but in the event a bona
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fide union is involved the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.
- Medical Attention
Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he/she is working constitutes hours worked.
- Civic and Charitable Work Time spent in work for public or charitable purposes at the employer’s request, or under the employer’s direction or control, or while the employee is required to be on the premises,
is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours are not hours worked.
- Suggestion Systems
Generally, time spent by employees outside of regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are
permitted to work on suggestions during regular working hours the time spent must be counted as hours worked. Where an employee is assigned to work on the development of a suggestion, the time is considered hours worked.
G. Clothes Changing and Wash-up Time 1. If clothes changing and wash-up activities by employees on the premises of the employer
are integral parts of the principal activities of the employees because the nature of the work makes the clothes changing and washing indispensable to the performance of productive work by the employees, the time spent is hours worked, except where such clothes changing and wash-up activities are the only pre shift and post shift activities performed by the employees on the premises of the employer, the time spent in these activities has never been paid for or counted as hours worked by the employer, and the employees have never opposed or resisted this policy in any manner although they have apparently been
fully aware of it, or there is a custom or practice under the collective bargaining agreement to exclude this time from the measured working time.
- An employer may set up a formula by which employees are allowed given amounts of time to perform clothes changing and wash-up activities provided the time set is reasonable in relation to the actual time required to perform such activities. The time allowed will be considered reasonable if a majority of the employees usually perform the activities within
the given time.
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- Employees who dress to go to work in the morning are not working while dressing even though the uniforms they put on at home are required to be used in the plant during working hours. Similarly, any changing which takes place at home at the end of the day would not be an integral part of the employees’ employment and is not working time.
H. Participation in Athletic Events
Time spent by an employee as a participant in, or as an umpire, referee, scorer, or similar official in an athletic event sponsored by the employer, if the participation of the employee in these activities is completely voluntary and if his regular employment is not conditioned upon his participating in these activities is not considered hours worked.
I. Fire and Disaster Drills
Time spent by employees in participating in fire or other disaster drills, whether voluntary or involuntary or during or after regular working hours, is considered substantially to be benefit of the employer and therefore is compensable hours of work. Of course, such time may be compensated at the applicable minimum wage rate rather than the employees’ regular rate.
J. Inspections Under the Occupational Safety and Health Act of 1970
During an inspection under the Act where an authorized representative of the employees shall be given an opportunity to accompany the VOSH compliance officer, the time is not considered hours worked. Since the Act does not require that an employee representative accompany the compliance officer nor does it impose a duty on the employer to require an employee to accompany the compliance officer, such time spent by an employee is considered voluntary and primarily for the benefit of the employees. Where there is no authorized employee
representative and the VOSH compliance officer shall consult with a reasonable number of employees concerning health and safety at their workplace, this time is considered hours worked, provided it is during the normal workday and on the employer’s premises.
K. Homeworker’s Travel
The time spent by home workers in traveling to and from the employer’s premises (or other
pickup/drop off point) to obtain work-related materials or equipment and/or to deliver finished products, is primarily for the employer’s benefit and must be included in the total hours worked by home workers. Where such trips are combined with personal errands, e.g., grocery shopping or visits with friends, the time spent in such personal pursuits is excluded from the total travel time for the trip in calculating hours worked.
Section 12.00 Trainees
L. Trainees are not employees within the meaning of the federal Fair Labor Standards Act or the Virginia Payment of Wage Law, § 40.1-29 of the Code of Virginia only if all
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of the following criteria are met.
-
The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
-
The training is for the benefit of the trainees or students;
-
The trainees or students do not displace regular employees, but work under their close supervision.
-
The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;
-
The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
-
The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
B. Employees (those individuals who have been hired) shall be paid wages, at least in the amount of the minimum wage, for all training hours required by the employer.
Section 13.00 Employee vs. Subcontractor/Independent Agent
Section 40.1-29 only provides coverage to employees; it does not apply to subcontractors or independent agents. Many employers will classify an employee as an independent agent when in actuality an employer/employee relationship exists. IRS publications clarify that agency’s position regarding an individual’s employment status. DOLI accepts and hereby adopts IRS’s determination as to when an individual is an employee and when an individual is a subcontractor/independent agent. If the employer disputes the employment status of the
claimant, the claimant should be referred to the IRS for a determination on employment status.
Section 14.00 Payroll Deductions and Forfeiture of Wages
C. Deductions and Forfeitures
-
No employer may withhold any part of an employee’s wages for non-payroll deductions without written and signed permission of the employee, except for deductions for payroll advances and wage overpayments. §40.1-29
-
No employer can require an employee, except an executive employee, to enter into a contract or agreement (written, verbal, or implied) which requires the employee to forfeit his wages, salaries, or commissions as a condition or continuance of employment. (§ 40.1-
29(D))
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-
Blanket authorizations signed by an employee at the commencement of employment which allow such forfeitures will be considered per se a condition of employment, and are not allowed. Only a signed agreement that is truly voluntary, and is not a condition of employment, is allowed by § 40.1-29(D).
-
No deduction is allowed which reduces an employee’s pay below the amounts protected by the applicable state or federal minimum wage. The only exception is deductions for moneys already received by the employee for work performed such as pay advances, loans and wage overpayments.
-
DOLI shall attempt to collect all moneys unlawfully withheld from an employee as a result of unauthorized deductions or wage forfeitures except as described in Item 6 below.
-
DOLI shall not pursue collection of moneys on behalf of an employee in instances of proven theft, misappropriation, or other criminal activity related to the alleged wages due; or in cases for which the employee has already received all moneys for time worked (i.e., payroll advances, personal travel advances and personal loans). A technical violation may
be cited against the employer in these instances. If a criminal case is pending against the employee for theft, misappropriation, or other criminal activity, investigation will be delayed until case is decided by the court. If the employee is exonerated of the charges and the employer refuses to pay the wage debt, DOLI will pursue investigation.
B Definitions
- “Forfeit” is defined in Webster’s dictionary to mean “to lose or lose the right to by some
error, offense, or crime.” As used in § 40.1-29(D), the employee would lose his wage, salary, or commission because of something he did do or something he did not do. In many cases, you can identify forfeiture contracts or agreements based on whether it is voluntary on behalf of the employee. Voluntary is not absolute, however. Often, an employee will voluntarily enter into agreements which are forfeitures. For example, a commissioned salesman will voluntarily sign an employment contract to the effect that he will forfeit (give
up) any commissions owed him upon termination of employment. Many employees are not aware that such agreements are illegal and will sign whatever is necessary in order to gain employment.
- “Voluntary” is defined as not under compulsion, unconstrained by interference, spontaneous, acting of oneself. Because of the unequal bargaining power of employers and employees, the voluntary nature of many agreement may be questionable. Any agreement which is clearly not in the employee’s interest will be considered involuntary. As a test, the Representative should determine who benefits from the agreement. If the employee benefits, the agreement may be considered voluntary. If the employer benefits (or profits) from the agreement and the employee does not benefit, the agreement may be considered
involuntary.
C. Forfeiture - To forfeit is to incur a loss through some fault, omission, error, or offense.
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All deductions are not forfeitures. A forfeiture implies a penalty imposed by an employer as a consequence of the commission of some act or the omission of some act by the employee.
Examples of forfeitures include deductions from employee wages as “punishment” for such things as:
-
Failure to punch the time clock or sign a time card.
-
Bad checks or credit card charges by customers.
-
Gasoline purchases by customers who drive off without paying.
-
Broken dishes, lost silverware, damaged equipment.
-
Mathematical errors.
-
Cash register shortages.
-
Breach of an employment contract or failure to give advanced termination notice.
-
Violation of a company work rule.
-
Loss of commissions because employment terminated.
Forfeitures would not include deductions for items which are not caused by an error, omission, or offense, by the employee such as:
-
Purchase of uniforms or tools.
-
Insurance premiums.
-
Escrow accounts (provided amounts in escrow accounts are not at a later date given up (forfeited) by the employee because of an error, omission, or offense (commission of an offense) by the employee.
-
Pay advances.
-
Repayment of personal loans received from the employer.
- Repayment for equipment or other items purchased from the employer.
Note: These would be considered “deductions” within the meaning of § 40.1-29 and except for pay advances the written and signed consent of the employee is required. Such deductions, except for pay advances and personal loans cannot reduce the amount of wage below the applicable state or federal minimum wage.
Section 15.00 Assisting Wage Complainants in Filing Proof of Claim Forms for Unpaid Wages
The following procedures shall be adhered to when the Compliance Officer determines an employer has declared bankruptcy and DOLI can no longer pursue collection of unpaid wages due employees:
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A. Direct the wage claimant to contact the United States Bankruptcy Court for a proof of claim form.
B. The Compliance Officer will provided the location of the United States Bankruptcy Court and the name of the trustee handling the bankruptcy if known to the claimant.
28
Interpretation of Temporary Labor Camp Housing RegulationsDoc ID: VOSH
--- Page 1 ---COMMONWEALTH of VIRGINIA
DEPARTMENT OF LABOR AND INDUSTRY
C. RAY DAVENPORT MAIN STREET CENTRE
COMMISSIONER 600 EAST MAIN STREET, SUITE 207
RICHMOND, VIRGINIA 23219
PHONE (804) 371-2327
FAX (804) 371-6524
TDD (804) 786-2376 September 17, 2019 (804) 786
Steven Brown
Brown Bear Vineyard 229 Springhouse Lane Woodstock, VA 22664
SUBJECT: Interpretation of 1910.142(a)(2), Temporary Labor Camps Brown Bear Vineyard Temporary Labor Camp Housing
Dear Mr. Brown
Your company has requested an interpretation of Virginia Occupational Safety and Health (VOSH) regulation 1910.142(a)(2) and its application to temporary labor camp housing you are building at the Brown Bear Vineyard located at the above-referenced address.
The building under construction is intended to house H2A workers who may reside there off and on from March to November annually as they engage in a number of different work activities at your vineyard (see photographs in Attachment A).
The housing is within 500 feet of livestock grazing land and a pond located on an adjoining property (Bly Farm) — not owned by Brown Bear Vineyard. The primary purpose of the pond is to serve as a watering hole for a herd of from 25-30 beef cattle. A fence line and a substantial tree and vegetation line separate the two properties (see photographs in Attachment B).
The distance of the housing to the fence line varies from approximately 120 feet at its closest to 390 feet to the closest edge of the pond (See Attachments C and D). The cattle have a grazing area of approximately 85-90 acres and are not subject to being enclosed in either a smaller fenced area or barn.
Page | I
--- Page 2 ---Section 1910.142(a)(2) of the VOSH Standards for General Industry provides as follows: All sites shall be adequate in size to prevent overcrowding of necessary structures.
The principal camp area in which food is prepared and served and where sleeping quarters are located shall be at least 500 feet from any area in which livestock is kept. (Emphasis added).
The purpose of the 500 feet setback requirement is sanitary.1 Federal OSHA has previously
noted in an interpretation dealing with this same regulatory provision that: “The purpose of the 500 feet setback is sanitary. In cases where livestock are generally kept for protracted periods of time in enclosures closer than 500 feet to sleeping and food preparation areas, a potential health hazard to employees exists.
The purpose of OSHA standards is to ensure health and safety of the working population. When it is difficult for an employer to adhere to certain stipulations of a standard because of the inherent nature of his operation, an evaluation of the health and safety repercussions is necessary. If it can be demonstrated that no significant risk to workers’ health and safety would occur as a result of a nonconforming activity, then the situation may be judged to be "de minimis" and no citation of the aberrant activity will be issued.”
Federal OSHA has also noted in Federal Register 80:23822-23823 that one purpose of the
standard is to eliminate the incidence of communicable disease: “The main purpose of these provisions [1910.142(1)2] is to eliminate the incidence of communicable disease among temporary labor camp residents. The Standard requires camp superintendents to report immediately to the local health officer the name and address of any individual in the camp known to have, or suspected of having, a communicable disease (29 CFR 1910.142)(1)(1)). Whenever there is a case of suspected food poisoning or an unusual prevalence of any illness in which fever, diarrhea, sore throat, vomiting or jaundice is a prominent symptom, the standard requires the camp superintendent to report that immediately to the health authority
(29 CFR 1910.142(1)(2)).”
1 OSHA Interpretation dated April 12, 1988 from Assistant Secretary John A. Pendergrass to Linda M. Jones,
Executive Director, Wyoming/Colorado Agricultural Employers Association. https://www.osha.gov/laws-
2 1910,142(1), "Reporting communicable disease."
- 14211)(@)
It shall be the duty of the camp superintendent to report immediately to the local health officer the name and
address of any individual in the camp known to have or suspected of having a communicable disease.
- 142(1)(2)
Whenever there shall occur in any camp a case of suspected food poisoning or an unusual prevalence of any
illness in which fever, diarrhea, sore throat, vomiting, or jaundice is a prominent symptom, it shall be the duty
of the camp superintendent to report immediately the existence of the outbreak to the health authority by
telegram, telephone, electronic mail or any method that is equally fast.
Page | 2
--- Page 3 ---Onsite Inspection
A VOSH onsite inspection of the Brown Bear Vineyard temporary labor camp housing and surrounding area was conducted on July 17, 2019. Following is a summary of the results of the inspection:
- ¢ At any one time 25-30 cattle are not being “kept” in an enclosure or barn structure within 500 feet of the temporary labor camp housing, but do have access to water and grazing within 500 feet. On the day of the inspection 26 cattle were observed in the pasture, 5 of which were located at or near the pond and within 500 feet of the housing.
-
The pond in question is currently the only water source for the herd. A second pond located more than 500 feet from the housing is located on the grazing land, but is temporarily closed off for repairs. It is scheduled to be available to the cattle by fall of 2019.
¢ Pat Racey3, whose family owns the property adjoining Brown Bear Vineyard, commented that historically, only a few cattle are at the pond at any one time. He stated that most of the herd is grazing or resting outside of the 500 feet distance, which was supported by the inspector’s observations.
¢ The inspector observed that the animals are free to wander the entire pasture, but there is a cow path that connects the two ponds. Mr. Racey commented that the herd spends most of its time in the vicinity of either the path or the ponds.
¢ There is one “barn” on the property but it is not used for sheltering cattle and is well outside the 500 feet distance.
¢ The contour of the land on both properties is hilly. Topographical data was provided to the inspector as supporting documentation (see Attachment D).
¢ According to the topographical data and photographs, the housing is approximately 5 feet lower in elevation in relation to the pond and there is a dense thicket of trees, brush and vegetation between the two points that can only be seen through in certain spots along the property line.
¢ There is a ravine on the pasture side of the fence that runs along the property line and serves as drainage for that land so that rain and waste runoff from the direction of the pond is carried downslope of the housing.
¢ The ravine on the pasture side of fence contained a minimal amount of standing water, estimated by the inspector to be a couple of gallons. The water is sluiced away by a primitive drainage system, which could be improved to eliminate standing water.
Interpretation Section 1910.142(a)(2) of the VOSH Standards for General Industry provides as follows: All sites shall be adequate in size to prevent overcrowding of necessary structures.
The principal camp area in which food is prepared and served and where sleeping quarters are located shall be at least 500 feet from any area in which livestock is kept. (Emphasis added). 3 Mr. Racey and his company, Racey Engineering, have been providing engineering and consulting services to Brown Bear Vineyard before and during the pendency of this interpretation request.
Page | 3
--- Page 4 ---There is some question concerning the meaning of the word “kept”4 in the text of the above
regulation. For purposes of this interpretation, the Department will evaluate the facts
presented using a broad definition of “kept” (e.g., any place livestock may be present), to
assure that a high level of employee protection is given due consideration.
If a broad definition is used, the current placement of the Brown Bear Vineyard temporary
labor camp housing is within 500 feet of where livestock is kept or present and would
constitute a violation of §1910.142(a)(2).
The VOSH Field Operations Manual (FOM), Chapter 10, page 38, describes a de minimis
violation in the following manner
“De minimis violations are violations of standards which have no direct or
immediate relationship to safety or health. Compliance Officers identifying de
minimis violations of a VOSH standard shall not issue a citation for that violation,
but should verbally notify the employer and make a note of the situation in the
inspection case file. The criteria for classifying a violation as de minimis are as
follows
Employer Complies with Clear Intent of Standard.
An employer complies with the clear intent of the standard but deviates from
its particular requirements in a manner that has no direct or
immediate relationship to employee safety or health. These
deviations may involve distance specifications, construction material
requirements, use of incorrect color, minor variations from recordkeeping,
testing, or inspection regulations, or the like.” (Emphasis added).
Based on the information provided by Brown Bear Vineyard and observations and evidence
obtained during the VOSH inspection of July 17, 2019, it appears that the location of the
Brown Bear Vineyard temporary labor camp housing within 500 feet of grazing land and a
pond that serves as a watering hole, does not pose a significant risk to worker safety and
health
a
—
4 At this time there is insufficient information available from the OSHA regulatory promulgation record on
whether the term “kept” was to be given a narrow definition (e.g., the livestock are “enclosed” in a confined
area) or a broad definition (e.g., any place livestock may be present).
Resort to standard dictionary definitions does not result in a definitive conclusion. According to the
Cambridge English Dictionary, “kept” is the past tense and past participle of “keep
” ott
.
Keep” is variously
defined “to be in or continue to be in someone’s possession”; or “to stay or cause to stay or continue ina
particular place, direction or condition”, htips://dictionary.cambridge.org/us/dictionary/english/keep
If the narrow definition is used, there is no information to indicate that the cattle on the adjoining farm have
been or are ever kept in a tightly enclosed or confined area within 500 feet of the housing; which could result
in overgrazing, concentration of cattle waste, potential increased risk of disease spread among the cattle, etc.
In that event, §1910.142(a)(2) would not apply to the current placement of the Brown Bear Vineyard
temporary labor camp housing, and our enquiry would stop there.
Page | 4
--- Page 5 ---e The topography of the land combined with the size of the dense tree and vegetation line between the two properties provides a substantial barrier between the housing and the watering and pasture land of the cattle.
e The relatively small size of the cattle herd combined with the relatively large size of the grazing pasture serve to significantly reduce the likelihood of overgrazing, which could otherwise result in a concentration of cattle waste, degradation of the pasture grass and soil, potential increased risk of disease spread among the cattle, etc.
e The topography of the land on the pasture side of the fence provides natural run-off of water and cattle waste downslope away from the housing location; which serves to significantly reduce the likelihood of unsanitary conditions developing near the housing.
e The cattle are not enclosed in small areas or housed in a barn within 500 feet of the housing location, significantly reducing the likelihood of the conditions noted above related to overgrazing, degradation of the pasture, or concentration of cattle waste.
e Anecdotal information provided by Mr. Racey, who grew up on the adjoining property, and confirmed during the inspection, supports a reasonable conclusion that at any one time approximately 20% (5 to 6 cattle) of the cattle herd gather at the watering hole within 500 feet of the housing. This low concentration of cattle around the pond serves to significantly reduce the likelihood of unsanitary conditions.
e Once the second pond on the adjoining property (outside the 500 feet zone) is available to serve as another watering hole for the cattle, it should result in a reduced concentration of cattle around the first pond. This should serve to further reduce the possibility of unsanitary conditions developing within 500 feet of the housing.
Therefore, Brown Bear Vineyard’s placement of the temporary labor camp housing within
500 feet of where livestock are kept does not pose a significant risk to worker safety and
health, and is deemed to be a de minimis violation of §1910.142(a)(2).
NOTE: If the adjoining property owner is amenable, and to avoid a potential violation of 1910.142(a)(1)5 of the VOSH Standards for General Industry, it is recommended that the ravine on the pasture side of the fence which contained a minimal amount of standing water (estimated by the inspector to be a couple of gallons) be improved to eliminate the possibility of standing water.
The above interpretation is based on the facts as represented by Brown Bear Vineyard at the
time of the VOSH inspection of July 17, 2019. Should workplace conditions substantively
change in a manner that poses an increased risk to the safety and health of employees from unsanitary conditions due to the proximity of livestock, this interpretation is subject to revision or revocation.
This interpretation shall not be construed to abrogate in any way the employer’s
responsibility to comply with the remaining provisions of 1910.142, including, but not
limited to 1910.142(1), Reporting communicable disease.
5 Section 1910.142(a)(1) provides that “All sites used for camps shall be adequately drained. They shall not be
subject to periodic flooding, nor located within 200 feet of swamps, pools, sink holes, or other surface
collections of water unless such quiescent water surfaces can be subjected to mosquito control measures.” Page | 5
--- Page 6 ---Thank you for your sincere interest in the safety, health and welfare of workers in Virginia.
Should you have any questions, please feel free to contact me at 804.786.0574, ron.graham@doli.virginia.gov
Sincerely,
fell bZp—
Ron Graham Occupational Health Director
Page | 6
--- Page 7 --- ATTACHMENT A: Brown Bear Vineyard 229 Springhouse Lane Woodstock, VA 22664 July 17, 2019 VOSH Inspection Photos: Temporary Labor Camp Under Construction | & . = = z= ) = = Bry? “pede | — a | a ee Ee a T + ir ae . fale - - — ' * >. = . man ’ 4 = ae He a 7 = i 7 . — "a | pd - ji} ; ry? i \: om 2 : - -Page | 7
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ATTACHMENT B
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ATTACHMENT C
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ATTACHMENT D
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Asbestos Notification Requirements for Military VesselsDoc ID: Virginia
--- Page 1 ---
OCCUPATIONAL HEALTH INTERPRETATIONS
February 2, 1998
Cynthia J. Morey Safety/Environmental Manager Arcon, Inc. 2506 Colley Ave.
Norfolk, VA 23517
Dear Ms. Morey
I am writing in response to your request for interpretation of notification requirements for asbestos abatement projects on military vessels. As we discussed on the phone, the Department of Labor and Industry has been
delegated the authority for enforcement of the asbestos NESHAPS notification requirements in Virginia.
Therefore, all asbestos abatement projects and demolitions that meet NESHAPS reporting requirements must be reported to this office. At the present time, USEPA maintains concurrent enforcement authority and requires that notifications are also sent to them. We are currently working on a computer system that would enable a single reporting system to this department.
The second area of your request for interpretation concerned the issue of emergency projects and the short time constraints imposed by the U.S. Navy on non-emergency projects. If the project is truly an emergency, i.e., ruptured pipes, fallen asbestos insulation etc., I would recommend reporting as soon as possible and explaining the nature of the emergency in the appropriate block on the form. In the case of notifications that do not meet the NESHAPS 10-day notice requirements, I suggest that the U. S. Navy provide you with a written request explaining the urgency of the project and that this request simply be attached to the notification. You may also wish to contact Racine Leonard(USEPA, Philadelphia, PA), to determine whether USEPA is in agreement with this process.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ June 4, 2001
Lil Felix Megaco Incorporated 8433 C Backlick Road Lorton, VA 22079
Re: Lead Removal Notification for VDOT Bridges
Dear Ms. Felix,
The Virginia Department of Labor and Industry regulation 16 VAC 25-35-10 requires that all contractors notify the Department of Labor and Industry for each lead activity that requires contractors to be licensed or certified by the Department of Professional and Occupational Regulation. Under this regulation, each structure that is scheduled to be deleaded would constitute a separate project and therefore require a notification. 1
--- Page 2 ---
Recently, the Department has received lead notifications that include numerous bridges under one contract price without adequate information regarding location or starting and finishing dates.
In an effort to make the above regulation easier to comply with on large projects, the Department of Labor and Industry will allow a single notification for multiple bridges, located on the same highway within a distance of 25 miles from the starting bridge to the final bridge. Bridges not on the same highway or outside of the 25 mile limit would constitute a separate project and require a separate notification.
If larger projects require multiple notifications, the contract price can be prorated based on the individual bridges within that project. In all cases, each notification must include a list of the individual bridges with their
location and start/finish dates. If the start/finish dates change for each individual bridge, the department must be notified by submitting an amended notification.
In the case of rain, amended notifications do not need to be sent unless the delay would cause that bridge to go beyond the original finish date. Also be advised that once a project goes beyond the established finish date, the project cannot be amended and a new notification would need to be submitted.
If you have further questions or need additional information, please feel free to contact me at 804-786-0574.
Very truly yours, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
From: Clarence Wheeling To: purchasing
Date: Tue, Mar 11, 2003 8:52 AM Subject: Re: Do we need to comply?
Yes, the Virginia Safety and Health Codes Board has adopted the Federal OSHA identical standard 1904.0 through 1904.46. This standard had an effective date of January 1, 2002 except for paragraphs 1904.10 (Hearing Loss and 1904.12 (Musculoskeletal Disorders) which had an effective date of January 1, 2003.
In response to your question, there should not be any difference in the posting requirements or the forms which can be downloaded from the OSHA website www.osha.gov . Also on the website, you may wish to review the Federal OSHA compliance directive CPL 2-0.131 which the Virginia Occupational Safety and Health (VOSH) program has adopted.
I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
2
--- Page 3 ---
"purchasing" hiwduke@earthlink.net 03/11/03 07:47AM >>>
As the Safety Officer for our steel fabrication company I am responsible for seeing that we are compliant with all regulations. I keep getting notices regarding the posting of OSHA Form 300A. Do we have to get this form and post it along with the VIOSH form we currently post in our plant? Or do we ignore the posting of the OSHA Form 300A in favor of the VIOSH form? I will be looking forward to hearing from you on this matter.
Respectfully;
Duke Whiteside ----------------------------------------------------------------------------
CC: Glenn Cox; Nancy Jakubec __________________
February 24, 1998
Rachel Riley, CET ManTech Environmental Corporation 1901 Research Blvd., Suite 240 Rockville, MD 20850
Dear Ms. Riley
This letter is in response to your request for interpretation of the Asbestos Standard for Construction (1926.1101) and the USEPA NESHAPS requirements as they pertain to asbestos containing wallboard materials in buildings. I have enclosed the EPA clarification regarding the analysis of multi-layered systems and Federal OSHA’s interpretation of the asbestos standard as it pertains to composite sampling. These two
documents will generally answer most of your questions related to the area of wallboard and joint compound inspection and bulk sampling.
Your specific questions were as follows
Question 1
A. What methodology should building owners use for evaluating the content of wallboard systems?
Answer: Building owners should use the NESHAP guidelines for all buildings, except schools which would be covered under the AHERA regulations.
B. What is the basis for an inspector responding to an OSHA complaint about wallboard and joint compound using a different sampling methodology than the employer or building owner would be required to use?
Answer: An OSHA inspector responding to a complaint would be evaluating a worker’s personal exposure and
this would involve taking personal air samples in the employee’s breathing zone.
Question 2
C. In Virginia, will DLI field inspectors separately sample joint compound which has previously only been tested as part of a composite sample of a wall system?
Answer: Only in conjunction with the previous question, to determine the source of exposure.
3
--- Page 4 ---
B. The scenarios presented are difficult to answer since compliance would depend on the individual facts of each investigation. The enclosed interpretations should provide adequate guidance for the responsibilities of the individual entities. To insure compliance with the OSHA regulations, employers that have employees disturbing this type of asbestos containing material, should conduct representative sampling for the different job duties.
This information could then be utilized, depending on the results, in conducting a Negative Exposure Assessment.
I apologize for the delay in responding to your request. If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ June 22, 2001
Kelly Pseftelis K.V.K. Contracting, Inc. 727 Wesley Ave.
Tarpon Springs, FL 34689
Re: Lead Removal Notification for VDOT Bridges Dear Ms. Pseftelis
The Virginia Department of Labor and Industry regulation 16 VAC 25-35-10 requires that all contractors notify the Department of Labor and Industry for each lead activity that requires contractors to be licensed or certified by the Department of Professional and Occupational Regulation. Under this regulation, each structure that is scheduled to be deleaded would constitute a separate project and therefore require a notification.
Recently, the Department has received lead notifications that include numerous bridges under one contract price without adequate information regarding location or starting and finishing dates.
In an effort to make the above regulation easier to comply with on large projects, the Department of Labor and Industry will allow a single notification for multiple bridges, located on the same highway within a distance of 25 miles from the starting bridge to the final bridge. Bridges not on the same highway or outside of the 25 mile limit would constitute a separate project and require a separate notification.
If larger projects require multiple notifications, the contract price can be prorated based on the individual bridges within that project. In all cases, each notification must include a list of the individual bridges with their location and start/finish dates. If the start/finish dates change for each individual bridge, the department must be notified by submitting an amended notification.
In the case of rain, amended notifications do not need to be sent unless the delay would cause that bridge to go beyond the original finish date. Also be advised that once a project goes beyond the established finish date, the project cannot be amended and a new notification would need to be submitted.
If you have further questions or need additional information, please feel free to contact me at 804-786-0574.
Very truly yours, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ 4
--- Page 5 ---
October 15, 1998
Sanat N. Bhavsar, Director of Environment, Safety and Health Yokohama Tire Corporation 1500 Indiana Street Salem, VA 24153-0648
Subject: Application for Variance from 1910.106(e)(9)(iii) and 1910.107(g)(3)
Dear Mr. Bhavsar
I apologize for the delay in providing a written response to your variance request and the Department’s visit to your facility. Your time and efforts in providing Mr. Judson and myself access to the area in question and the opportunity to discuss this issue with the workers are greatly appreciated.
It is the Department of Labor and Industry’s opinion that based on the nature of the waste materials being stored in the drums at the cement spray booths and the safety precautions in these areas, storage of one 55-gallon drum, while constituting a technical violation of the above standards, would be considered a De Minimis violation.
De Minimis violations are violations of standards which have no direct or immediate relationship to safety or health. When de minimis conditions are found during an inspection they will be documented in the same way as any other violation but will not be included in any citation.
As we discussed during the visit, this interpretation is based strictly on Yokohama’s practice of promptly removing the drums when they are filled and replacing them with an empty. Storage of more than one waste drum at these work stations will be considered to be a violation of the standards in question.
Again, I appreciate your patience and assistance in bringing this matter to an amicable conclusion. Since I do
not have the names and addresses of the union officials and workers we talked with, I would appreciate it very much if you would provide a copy of this letter to the affected personnel.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ March 19, 2001
Joni P. Greene 924 Professional Place
Chesapeake, Virginia 23320
Dear Ms. Greene
First, let me apologize for the failure to respond to your previous letter. I have tried to combine and paraphrase the issues in both your letters and hope that this information is helpful to you. If the following responses do not answer your questions, please let me know.
Question: What are the notification requirements for abatement projects that occur on Federal reservations or other facilities such as the maritime industry, where Federal OSHA has jurisdiction over workplace safety and health? 5
--- Page 6 ---
Response: The Virginia asbestos notification requirements as outlined in Section 40.1-51.20 of the Labor Laws of Virginia, requires licensed asbestos contractors to notify the Department of Labor and Industry for each asbestos project in accordance with our regulations. Under the provisions of ' 54.1-501.1 of the Code of Virginia, the Virginia Asbestos and Lead Licensing regulations administered by the Department of Professional and Occupational Regulation are not applicable to employers regulated by the Federal Occupational Safety and Health Act (OSHA). Under the Virginia State Occupational Safety and Health plan, the department has not chosen to enforce workplace regulations on Federal reservations or the maritime industry. Therefore, notification under the above regulations are not required, where Federal OSHA has assumed jurisdiction.
The Virginia Department of Labor and Industry has been delegated enforcement authority for the NESHAP requirements in Virginia. This department has adopted and continues to enforce the United States
Environmental Protection Agency’s NESHAP requirement (40 CFR Part 61.140-157). While you are not required to notify this agency for projects occurring on federal facilities under Virginia’s notification regulations, you are required to notify the Department of Labor and Industry for all projects in the Commonwealth of Virginia that requires notification under NESHAPs. Presently, you are also required to jointly notify EPA for any renovation or demolition project that is triggered by the NESHAP requirements.
Question: What are the notification requirements for multiple structure projects, such as target housing, apartment complexes, military housing, industrial complexes?
Response: Under the Department of Labor and Industry regulations, the definition of “Site” means a specific geographically contiguous area with defined limits owned by a single entity on which asbestos removal will occur. Likewise under the NESHAP regulations, “Installation” means any building or structure or any group of buildings or structures at a single site that are under the control of the same owner or operator. Attached you will find a copy of interpretative information that was issued in 1994. Projects that meet the above criteria could certainly be included on a single notification, as long as the notification contained the appropriate information regarding the individual locations within the site. Phased Projects as described in the attachment are restricted to
projects performed in a single building.
Question: Is any transite material, as long as it is in good condition, removed intact and kept wet during removal, exempt from notification?
Response: The Department of Labor and Industry regulation, requiring notification for asbestos projects, includes the following language, “An asbestos project or asbestos abatement project shall not include nonfriable asbestos-containing material roofing, flooring and siding materials which when installed, encapsulated or removed do not become friable.” According to our department attorneys, the sentence structure is inferred to have a comma between the word material and the word roofing.
Based on the above language, it is the department’s opinion that transite material in good physical shape, removed intact with minimal breakage and kept wet during removal is exempt from notification. The above interpretation is also in agreement with the language and intent of the United States Environmental Protection Agency’s NESHAP regulation, specifically, the definition of “Regulated Asbestos Containing Material”
(RACM).
Your letter specifically mentioned the notification requirements for removal of transite pipe. It is this department’s opinion that if the pipe is in good shape, i.e., not crumbling, and is kept wet and removed by lifting the pipe out intact or with minimal breakage at the joints, the project would not require notification.
However, if the pipes are removed in sections by mechanically sawing the pipes and the total length of the cuts exceeds the 10 linear feet requirement of the Virginia regulation, then this action would constitute a project, requiring notification.
6
--- Page 7 ---
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________
From: Clarence Wheeling To: R. Leonard Vance Date: Tue, Nov 12, 2002 6:36 AM Subject: Re: DLI Lead Permit; de minimis levels??
Leonard,
Yes. 16 VAC 25-35-30 states that written notification shall be made when the contract price is $2000 or more.
If you have further questions, give me a call.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219
Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
"R. Leonard Vance" vance@hsc.vcu.edu 11/08/02 03:52PM >>>
Dr. Wheeling
Is there any de minimis level below which a person doing lead paint, dust, or soil abatement subject to the DPOR Lead Regulations does not have to have a DLI permit? Thank you.
R. Leonard Vance, Ph.D., PE, CIH Associate Professor Department of Preventive Medicine & Community Health Medical College of Virginia/VCU P.O. Box 980212
Richmond, VA 23298-0212 (804) 628-2513; fax (804) 828-9773; e-mail: vance@hsc.vcu.edu http//:www.vcu.edu _____________________ From: Clarence Wheeling To: Heidi Baughman Date: Fri, Jan 24, 2003 8:44 AM Subject: Re: 40-Hour Training Questions
Heidi,
Attached is an interpretation from the Federal OSHA website related to your question. The Virginia Occupational Safety and Health program has adopted the identical Federal OSHA standard 1910.120 and follows any interpretations issued by OSHA. 7
--- Page 8 ---
This interpretation explains that there is no set time limit and that it is a case by case decision based on the experience and knowledge retained by the individual employee.
Hopefully, this interpretation can be reached at the following website. If this site is not correct, you can visit the OSHA website and look for the interpretation addressed to Mr. Jim Heringer on March 12, 1993. If you have any further questions or need additional assistance, please feel free to contact this office.
http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21062&p_text_ve rsion=FALSE
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Heidi Baughman HBaughman@schnabel-eng.com 01/21/03 04:58PM >>>
Clarence
I have a question regarding renewal of my 40-hour Hazardous Waste Training Certification. I worked in the environmental field (engineering) for several years, took a brief leave to teach, and have now rejoined the engineering field. Could you please guide me as to what I need to do in order to renew my certification. I read through some frequently asked questions on OSHA website and it looks as though the time-frame of around 2 years may indeed allow me to take a refresher course in lieu of re-doing the entire course, whereas a time frame
of 7 years may require re-taking the course.
I would appreciate thoughts or leads on whom I should contact to learn more about this.
Thank you, Heidi B.
This e-mail including attached files is confidential. Its transmission is solely as an accommodation for the benefit of the recipient. The recipient bears the responsibility for checking its accuracy against corresponding
originally signed documents provided by Schnabel Engineering. If you received this e-mail in error, its use is prohibited. Please destroy it and immediately notify postmaster@schnabel-eng.com . _____________________ July 19, 2002
Bill George, CIH National Industrial Hygiene Manager Target Corporation TPN-725 1000 Nicollet Mall
Minneapolis, MN 55403
Dear Mr. George
Thank you for your letter requesting consideration to exempt Post-1989 construction from asbestos inspections.
The delegation of NESHAPS authority in Virginia was transferred from the Department of Environmental 8
--- Page 9 ---
Quality to the Department of Labor and Industry in 1993 as a result of legislation passed by the Virginia General Assembly.
The Virginia Asbestos NESHAP Act passed by the Virginia General Assembly required the Virginia Safety and Health Codes Board, which is the body responsible for promulgating this department’s regulations, to promulgate standards that are as stringent as the asbestos regulations passed pursuant to the Clean Air Act.
Therefore, the Safety and Health Codes Board adopted the identical portions of the regulations contained in 40CFR Part 61 under the Clean Air Act, which deal with the Demolition and Renovation of asbestos facilities.
We have been in contact with the United States Environmental Protection Agency (USEPA) concerning your request and understand they will be responding to your request. Since the Virginia regulations are required to be
as stringent as the Federal regulations and the USEPA has concurrent enforcement authority in Virginia, the Virginia Department of Labor and Industry does not believe that changes to these regulations are appropriate at this time. Should the USEPA enact changes to the NESHAP regulations, to ensure consistency, this agency would review these changes and present them to the Safety and Health Codes Board for adoption.
I hope this information is useful and if you have further questions or need additional information please feel free to contact me at 804-786-0574.
Very truly yours, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
June 4, 2001
Danielle Damalos
S & D Industrial Painting Inc. 1602 Mexico Ave.
Tarpon Springs, FL 34689
Re: Lead Removal Notification for VDOT Bridges
Dear Ms. Damalos,
The Virginia Department of Labor and Industry regulation 16 VAC 25-35-10 requires that all contractors notify the Department of Labor and Industry for each lead activity that requires contractors to be licensed or certified by the Department of Professional and Occupational Regulation. Under this regulation, each structure that is scheduled to be deleaded would constitute a separate project and therefore require a notification.
Recently, the Department has received lead notifications that include numerous bridges under one contract price without adequate information regarding location or starting and finishing dates.
In an effort to make the above regulation easier to comply with on large projects, the Department of Labor and Industry will allow a single notification for multiple bridges, located on the same highway within a distance of 25 miles from the starting bridge to the final bridge. Bridges not on the same highway or outside of the 25 mile limit would constitute a separate project and require a separate notification.
If larger projects require multiple notifications, the contract price can be prorated based on the individual bridges within that project. In all cases, each notification must include a list of the individual bridges with their location and start/finish dates. If the start/finish dates change for each individual bridge, the department must be notified by submitting an amended notification. 9
--- Page 10 ---
In the case of rain, amended notifications do not need to be sent unless the delay would cause that bridge to go beyond the original finish date. Also be advised that once a project goes beyond the established finish date, the project cannot be amended and a new notification would need to be submitted.
If you have further questions or need additional information, please feel free to contact me at 804-786-0574.
Very truly yours, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
April 30, 1998
Mr. Marc Russell 1861 Pratt Drive Blacksburg, VA 24060
Dear Mr. Russell
This letter is in response to your letter of April 16, 1998 concerning training requirements of Hazardous Waste Operations and Emergency Response regulation (1910.120).
Your questions concern the clarification of training requirements for field technicians who routinely sample industrial wastewater, groundwater at active and closed landfills and hazardous waste drums at local industrial facilities. In addition, some laboratory technicians are involved in disposal of hazardous waste chemicals on-site.
Personnel who are on-site occasionally and engaged in inspection and sampling activities that are unlikely to expose them over the PEL may be considered workers on-site occasionally for a specific limited task. These workers would need 24-hours of training and one day of actual field experience in accordance with Paragraph (e), if these landfills fall under the scope of 1910.120(a)(I)-(iii). The scope of 1910.120(a)(1)-(iii) would include hazardous waste sites listed by EPA, state priority lists or initial investigations of government identified sites. The scope also includes any clean-up sites covered by RCRA and clean-up operations at sites recognized by federal, state, local or other governmental bodies as uncontrolled hazardous waste sites.
Field technicians involved in sampling waste drums at local industrial facilities or laboratory technicians involved in disposal of hazardous waste chemicals on-site at TSD facilities would also need 24-hours of training.
Field or laboratory technicians that are expected to respond to releases of hazardous chemicals during transport, handling or sampling of chemicals, would require training under 1910.120(q). The amount of training under 1910.120(q) varies depending on the duties and function to be performed by each responder.
If these activities are not covered under the scope of 1910.120, training would still need to be conducted as required by the hazard communication standard, personal protective equipment standard and if respirators are used, the respiratory protection standard.
Your letter concludes with the question concerning “what possible violations and/or consequences may be incurred”. If an inspection was conducted, citations may be issued for violation of applicable training requirements previously mentioned.
10
--- Page 11 ---
I hope this information is helpful. If you have further questions feel free to contact me at 540-562-3580.
Sincerely, Dr. Clarence H. Wheeling Director, Occupational Health Compliance _____________________ October 15, 1998
Chad Smith, Senior Environmental Engineer Apex Environmental, Inc. 468 Southlake Boulevard Richmond, VA 23236
Dear Mr. Smith
This letter is in response to your request for interpretation of the USEPA NESHAPS requirements as they pertain to asbestos containing wallboard materials in buildings. I have enclosed the EPA clarification regarding the analysis of multi-layered systems. This document will generally answer most of your questions related to the area of wallboard and joint compound inspection and bulk sampling.
Your specific questions were as follows
A. Is the building owner required to file a NESHAPS notification for the removal of the drywall material?
Answer: Based on the information provided in your letter, a NESHAPS notification would not be required.
B. Is the building owner required to have the drywall and floor tile materials removed by a Virginia licensed asbestos abatement contractor?
Answer: No.
C. If no to above, can the building owner himself remove the drywall and floor tile materials from the area?
Answer: Yes
I apologize for the delay in responding to your request. If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________
From: Clarence Wheeling To: Ken Pracht Date: Thu, Mar 13, 2003 2:19 PM Subject: Re: Confined Spaces in Construction
Mr. Pracht,
Based on a strict reading of the Virginia Confined Space Standard for the Construction Industry CNSP.146, Paragraph 9A., it would be my recommendation that a retrieval device be made available. The standard specifically states that where a hazardous atmosphere "has been demonstrated" by the qualified person, the retrieval equipment shall be used.
While I understand your scenario regarding the ventilation and elimination of the hazardous atmosphere, I 11
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would refer you to Appendix E in the General Industry's Confined Space Entry Standard (1910.146). This appendix while not mandatory for the Virginia standard does outline the hazards associated with entry into a sewer system. Additionally, if the work being done on the sewer is considered "maintenance", then the General Industry Confined Space Standard 1910.146 would apply.
For further guidance on the Construction vs. Maintenance issue, I would refer you to the Virginia Administrative Regulations Manual which can be found on the Department of Labor and Industry website www.doli.state.va.us . Federal OSHA has also issued some guidance on their website www.osha.gov related to the construction vs. maintenance work.
I hope this information is helpful. If you have further questions or need additional information, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Ken Pracht KPRACHT@perryeng.com 03/04/03 08:35AM >>>
With regards to the VA Confined Space Standard for the Construction Industry, is a retrieval device necessary when entering a sanitary sewer manhole with a hazardous atmosphere if the hazardous atmosphere has been eliminated by forced ventilation? To put it another way; if the hazardous atmosphere is eliminated by forced ventilation prior to entry, there is no engulfment hazard, the entrant wears a continuous air monitoring device while in the manhole, and an attendant monitors the forced ventilation so that in the event of failure the entrant can be notified and instructed to evacuate the confined space, would it be acceptable to eliminate the retrieval device?
This question is not related to any VOSH enforcement activity. I simply want to determine whether we need to take additional steps to ensure compliance.
Your response would be appreciated.
Ken Pracht, CSP Safety Director Perry Engineering Co., Inc. (540) 667-4310
CC: Glenn Cox; Jay W. Withrow _____________________ From: Clarence Wheeling To: Elizabeth Sheriff Date: 4/7/03 9:53AM Subject: Re: compliance of standards
Ms. Sheriff,
While the issue you raise is clearly a safety issue, jurisdiction under the Virginia Occupational Safety and Health regulations does not extend to non-employees, such as students and volunteers. In your situation, the 12
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school is required to provide appropriate personal protective equipment for all employees, which includes teachers and any assistants that would be classified as employees. If employees are not being adequately protected, they would need to contact the Virginia Department of Labor and Industry office located in Norfolk.
Below is the address and phone number for the Norfolk Regional Office
Tidewater Region Interstate Corporate Center, Building 6 6363 Center Drive, Suite 101 Norfolk, Virginia 23502 Phone: (757) 455-0891 Fax: (757) 455-0899
My recommendation would be to contact the Virginia Beach School Board or work through the PTA organization. I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634
email: chw@doli.state.va.us >>> "Elizabeth Sheriff" e.sheriff@worldnet.att.net 04/04/03 03:53PM >>>
I have an inquiry regarding a high school in Virginia Beach. The high school in question is Princess Anne High School. The school expects students to purchase safety goggles for the science experiments. It would seem to
me that if a school requires that the experiments be completed for graduation requirements, that it is the school's responsibility to provide acceptable safety equipment for the students to conduct those labs. I do know that in the high school in which I am employed, OSHA funds pay for most if not all of the required safety equipment in the school. It would seem to me that those funds would be provided to all schools to comply with safety standards. So why is it that Princess Anne High School in Virginia Beach requires students to provide their own goggles which may or may not be acceptable under safety standards, and in addition, why would they not be provided with the funds to purchase needed safety equipment for their school as other schools are? On top of that, if the students do not provide their own goggles, they have their grades lowered by one letter grade, so they are being punished for the school not providing required safety equipment.
Please respond and let me know that I am correct in the fact that they are not in compliance if the students are not wearing acceptable goggles because they are not provided by the school. Thank you. _____________________ From: Clarence Wheeling To: anne.shields@att.net Date: 4/14/03 3:25PM
Subject: Re: latex allergy in hospital work setting Ms. Shields,
At the present time, there are no regulations covering the delayed hypersensitivity to latex. I have spoken with
13
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Federal OSHA and there are currently no requirements that would require the employer to replace the gloves in a specified area or in the hospital in general.
I am sorry we cannot be of more assistance. If you have further questions or need additional information, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
anne.shields@att.net 04/12/03 04:57AM >>>
My name is Anne Shields. I am an RN at Winchester Medical Center in Winchester, VA. I am a RAST immediate positive and ELISA/ACT test delayed sensitivity for latex.
I am supplied nitrile gloves. This is what the center states is the only thing I am entitled. However, every night that I work, I have hives and bronchospasm from being near the latex gloves.
I have asked my manager to switch to all non latex in our unit. She states that this is a $1200 per year expense that she does not have to comply.
Is this a true statement? I was under the belief that I have a right to a safe environment to work. If I am having allergic reactions at the work place to a substance in the work place, am I provided a safe workplace?
Thank you for any help you can give me.
Anne Shields, RN 237 Nightingale Ave Stephens City, VA 22655 540-868-1268 _____________________
May 20, 1999
Mark V. Wiggins, CIH Liberty Mutual Group 100 Center Point Circle Columbia, SC 29202-5860
Dear Mr. Wiggins
This letter is in response to your request for interpretation of the Virginia Occupational Safety and Health program’s respiratory protection standard 1910.134.
Question: Has the State of Virginia adopted the revised final rule for respiratory protection as published in the Federal Register, Thursday, January 8, 1998?
Answer: Yes. 14
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Question: Was the standard adopted verbatim, or were there any modifications made to the standard when it was codified into State law?
Answer: Adopted verbatim.
Question: If the standard was modified for adoption in the State of Virginia, could you point out the changes and provide a copy of the portions of text that were changed?
Answer: No changes were made.
Question: Has Virginia OSHA published any enforcement directives, memorandums, or guidelines for the enforcement of the revised rule? If so, could you provide a copy?
Answer: The Virginia OSHA program has adopted the Federal OSHA compliance directive CPL 2.120 verbatim. This document can be obtained from the OSHA Internet site WWW.OSHA.GOV
Question: If the standard was not modified when was it codified? How is Virginia OSHA interpreting section 1910.134(c)(2)(ii)?
Answer: This standard was adopted by the Virginia Safety and Health Codes Board on February 9, 1998. If an employee is wearing an elastomeric or supplied air respirator, even when voluntary on the part of the employee, will require the employer to include all elements in a written program that will ensure use of these respirators does not create a hazard. Employers are not required to include in a written program those employees whose only use of respirators involves the use of filtering facepieces (dust masks).
Question: Can the employer permit the voluntary use of approved filtering facepiece respirators (dust masks) without including such employees in a written respirator protection program provided that the following conditions are met: * The use of the respirator does not in of itself under the conditions of use create a hazard in of itself; Employee exposures to dusts are below applicable permissible exposure limits; The employer has provided such employees with the information contained in Appendix-D of 1910.134
Answer: Yes.
Question: How does Virginia OSHA interpret the phrase “does not create a hazard in and of itself” with regard to the selection and use of respirators?
Answer: This would include things that impact an employee’s health such as a cardiac or pulmonary disorders,
dirty respirators that can cause dermatitis, or sharing of respirators that can lead to transmittal of diseases.
Question: Are “comfort masks” [example, 3M 3500] considered to be respirators even though these devices are not NIOSH-approved respiratory protection devices? Can employers be subject to violations related to section 1910.134 even if these devices are not approved respiratory protection devices?
Answer: The Federal OSHA compliance guideline, CPL 2.120, uses the term respirator when referring to filtering facepieces (dust masks) that are used voluntarily. NIOSH approved respirators are strongly recommended but are not required for voluntary use. The voluntary use of dust masks does not require a written program and the employer needs only ensure that dust masks are not dirty or contaminated and that their use does not interfere with the employee’s ability to work safely. The employer is required to provide the employee with a copy of Appendix D in the respiratory protection standard.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ 15
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June 13, 2001
Dana Larkin Storm Surge Communications 513 White Oak Drive Virginia Beach, VA 23462-4220
Dear Mr. Larkin
Thank you for your June 6, 2001 letter requesting clarification of the OSHA first aid requirements. There are several OSHA standards, including 1910.151(b), that in the absence of an infirmary, clinic or hospital in near
proximity to the workplace, require a person to be adequately trained to render first aid.
Federal OSHA has issued guidance and recommendations that you have alluded to in your letter concerning the frequency of CPR training. The intent of the OSHA standard is to have someone present to administer first aid until such time as a medical response unit could arrive. The specific guidance issued by federal OSHA, on which training facility and the frequency of the training is advisory in nature.
If you need additional information or have further questions, please give me a call at 804-786-0574. Further information on this subject can be obtained from the Federal OSHA website www.osha.gov.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
Mar 29, 2002
C. W. Hammer P.O. Box 454 Monterey, VA 24465
Dear Mr. Hammer,
This letter is in response to an enquiry from the Highland County Health Department regarding the requirements for apparel or personal protective equipment during installation and repair of septic systems.
When working in the above environment, the employer should provide personal protective equipment that is appropriate for the type of work being performed. This would depend on the specific nature of the work and the degree of exposure to the employee.
Additionally, the employer would be required to comply with the Virginia Construction Industry Standard for Sanitation, 1926.51. This standard, depending on conditions, requires that drinking water, hand washing and
toilet facilities be available. Copies of the Sanitation Standard can be downloaded from the Department of Labor and Industry website www.doli.state.va.us , under Virginia Unique Standards.
If you feel that your workplace is unsafe, you should contact our Regional Office located in Verona, Virginia.
Virginia Department of Labor and Industry 201 Lee Highway Verona, Virginia 24482 540-248-9280 16
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I hope this information is useful and if you have further questions or need additional information please feel free to contact me at 804-786-0574.
Very truly yours,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
June 12, 1998
Betty H. Wine, Dir.
Occupational Testing Services, Inc.
Suite A-1 401 North Coalter Street Staunton, VA 24401
Dear Ms. Wine
I am writing in response to your request for interpretation of the requirements of the new Respiratory Protection Standard (1910.134). Specifically your questions regarding the fit-testing and medical evaluation questionnaires were as follows:
- Does this mean that the employer would not have access to these records?
Response: Yes, this regulation and other substance-specific health standards (e.g., the Cadmium standard
-
1027, the Lead standard 1910.1025, and the Benzene standard 1910.1043) require that medical questionnaires and examinations be administered in a confidential manner.
-
Who would be responsible for maintaining these records, the Company or the sub-contractor doing the testing?
Response: The company is responsible for ensuring that these records are maintained. They may contract with the PLHCP to maintain these records or in the case of employers who have on-site medical facilities, keep the records in the medical facility, provided they are kept confidentially.
- How will this affect companies doing in-house testing using their own personnel?
Response: See the above answer.
- Do Pulmonary Function Tests need to have a Physician’s signature on each report?
Response: This standard does not require the Pulmonary Function Test to have a PLHCP signature on the report.
- How would the employer know if the employee qualified to wear a respirator if reports did not come back to the Company and how would they know the reason, or would they even know why?
Response: This standard requires the employer obtain a written recommendation regarding the employee’s ability to use the respirator from the PLHCP. The written determination shall provide only the following information: 1) Any limitations on respirator use related to the medical condition of the employee, or relating to 17
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the workplace conditions in which the respirator will be used, including whether or not the employee is medically able to use the respirator, 2) The need, if any, for follow-up medical evaluations, and 3) A statement that the PLHCP has provided the employee with a copy of the PLHCP’s written recommendation.
- As for Companies like ourselves it would be quite unreasonable to maintain these records, due to the volume of clients being tested.
Response: As we discussed, the issue of record maintenance is a business decision that needs to be decided, between you and your client.
- Please define the standards for a Licensed Health Care Professional. I realize a Physician reviews and signs off, but for instance my employees who give the Respiratory Program are all certified in Spirometry for Industrial Pulmonary Function Technicians.
Response: The Physician or other licensed healthcare professional (PLHCP), means an individual whose legally permitted scope of practice allows him or her to provide health care services required by this standard.
In Virginia, this certification is made by the Board of Medicine. It is my understanding that medical doctors and nurse practitioners are permitted to provide these services in Virginia.
- What about Companies who do not have a plant physician?
Response: The employer is required by this standard to make the appropriate medical services available. It is the employer’s decision whether to contract these services out or hire their own corporate physician.
- In reference to respirator fit annual verses semi-annual fit testing, which should it be?
Response: Paragraph 1910.134(f)(2) requires fit testing prior to initial use, whenever a different respirator facepiece is used, and at least annually thereafter. Additional fit tests are required whenever the employee reports, or the employer, PLHCP, supervisor, or program administrator makes visual observations of, changes in the employee’s physical condition that could affect respirator fit. Such conditions include, but are not limited to, facial scarring, dental changes, cosmetic surgery, or an obvious change in body weight.
- How do you fit SCBA or positive pressure respirators?
Response: Paragraph 1910.134(f)(8) states that fit testing of tight fitting atmosphere-supplying respirators and tight fitting powered air-purifying respirators shall be accomplished by performing quantitative or qualitative fit testing in the negative pressure mode.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________
From: Clarence Wheeling To: Ryan Evans Date: Thu, Apr 10, 2003 7:41 AM Subject: Re: Clarification on Mercury Regulations
Mr. Evans,
In response to your request for clarification of the PEL for Mercury, the OSHA PEL is applied equally to males and females. The only clarification to the mercury PEL is that it is a time weighted average (TWA) and not a ceiling level. See: 18
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http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23866&p_text_ve rsion=FALSE
If there is any indication that an employee is exposed to any chemical, the employer should evaluate the exposure. However, unless there are specific requirements such as those included in the vertical standards, e.g., Asbestos, Lead, Cadmium, the employer is not specifically required to monitor exposure levels.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
"Ryan Evans" ryan@aircycle.com 04/09/03 11:37AM >>>
Dr. Clarence Wheeling Health Compliance Director Virginia Department of Labor and Industry CHW@doli.state.va.us
Greetings Dr. Wheeling,
My name is Ryan Evans, and as you may or may not recall, we spoke on the phone this past Friday afternoon, April 4th. As I mentioned in that conversation, I am in need of clarification regarding certain provisions of the regulations governing mercury exposure. You had mentioned that if I sent an e-mail delineating my inquiries, that you would be so kind as to offer a written reply. I am thus including in this e-mail the specific points which I would like to have clarified.
My questions are as follows
- With respect to the Personal Exposure Limit for mercury of .1 mg/m3 as an eight hour time weighted average (See: 29 CFR 1910.1000); does this P.E.L. apply equally to both male and female workers? I am particularly looking for clarification that the .1 P.E.L. is intended to apply to all workers, regardless of gender.
In the event that there are different P.E.L. standards for men and women, I would greatly appreciate an
explanation with reference to the applicable regulations where that distinction can be found.
- I am also interested in receiving clarification on under what circumstances, if any, there must be monitoring of employee exposure to mercury to ensure the P.E.L. is not exceeded.
Many thanks in advance for your clarification of these two issues.
Please forward a reply to my attention, using the contact information below.
Sincerely, Ryan L. Evans AirCycle 2000 S. 25th Avenue Suite C Broadview, IL 60155 ryan@AirCycle.com
____________________ 19
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From: Clarence Wheeling To: Edwin_Rodriguez@amr-ems.com Date: 1/29/03 2:39PM Subject: Re: Fwd: Medical Evaluation - Respiratory 1910.134
The only exemptions from medical evaluations in the Respirator Standard (1910.134) are the voluntary use of filtering facepiece respirators and the use of escape only respirators.
If you have further questions or need additional information, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Glenn Cox 01/29/03 02:28PM >>>
For you
"Rodriguez, Edwin" Edwin_Rodriguez@amr-ems.com 01/29/03 12:00PM >>>
PAPR are we required to have individuals to have a medical examination for this type of respirator (Hooded).
Thxs for the help.
CC: Glenn Cox __________________
From: Clarence Wheeling To: Borowiec@aol.com Date: Wed, Apr 2, 2003 7:05 AM Subject: Re: Compliance
John,
Below you will find a copy of the Sanitation standard 1910.141 that applies to the required number of restroom facilities. This standard has been adopted in Virginia and is identical to the Federal standard. If you have further questions or need additional information, please feel free to contact this office. Additionally, you may visit the Federal OSHA website www.osha.gov .
Clarence Wheeling
- 141(c)(1)(i) - Except as otherwise indicated in this paragraph (c)(1)(i), toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section.
The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided. Where such single-occupancy rooms have more than one toilet facility, only one such facility in each toilet room shall be counted for the purpose of table J-1. 20
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TABLE J-1______ | Number of employees | Minimum number of water closets (1) _____|_________ 1 to 15 .............. | 1 16 to 35 ..............| 2 36 to 55 ..............| 3 56 to 80 ..............| 4 81 to 110 .............| 5 111 to 150 ............| 6
Over 150 ..............| (2) _____|_________
Footnote (1) Where toilet facilities will not be used by women, urinals may be provided instead of water closets, except that the number of water closets in such cases shall not be reduced to less than 2/3 of the minimum specified.
Footnote (2) 1 additional fixture for each additional 40 employees.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634
email: chw@doli.state.va.us
Borowiec@aol.com 04/01/03 06:25PM >>>
Hello,
I tried contacting the Fed Osha about this matter, but they forwarded me to you. I am wondering if there is a minimum number of restroom facilities for a given number of employees? If it matters, this is a facility that houses a federal (State Dept.) contract but is not federally-owned. It resides in Loudon County.
Any help would be appreciated, thanks.
-John __________________
From: Clarence Wheeling
To: Susan Hollander Date: Wed, Jan 22, 2003 9:26 AM Subject: Re: Biohazardous Waste
The Virginia Department of Labor and Industry operates the Virginia Occupational Safety and Health (VOSH) program in Virginia. The Safety and Health Codes Board has adopted the identical Federal OSHA Bloodborne Pathogen standard 1910.1030. We also use any interpretations that OSHA issues on this standard. You may access this information on OSHA's website www.osha.gov
21
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In Virginia, the Department of Environmental Quality(DEQ) is the agency responsible for the environmental regulations which include the disposal of waste. Attached is the DEQ website which contains regulations regarding the disposal of biological waste. http://www.deq.state.va.us/waste/wastereg120.html .
If you have any questions regarding waste disposal, you should contact DEQ. If you have any questions on the Bloodborne Pathogen Standard, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574
Fax: 804-371-7634 email: chw@doli.state.va.us
"Susan Hollander" shollander@triad.rr.com 01/19/03 10:43AM >>>
Does the state of Virginia define "biohazardous waste" more specifically or differently than OSHA? For example, some states consider IV bags without any contact with the patient biohazardous waste, yet other states do not consider any special disposal for it than general trash. If you could refer me to anything specific on a website, I would appreciate it. Thank you.
Susan R. Hollander Senior Vice President, Operations Aspen Healthcare, Inc. 303-249-2388 (mobile) 336-449-5021 (office/fax) shollander@aspenhc.com _____________________
September 4, 2002
Scott B. Cormier John Randolph Medical Center P.O. Box 971 Hopewell, VA 23860
Dear Mr. Cormier
This letter is in response to your request for interpretation of the OSHA standards 1910.134 and 1910.120. Your questions regarding respirator use are as follows:
Question 1: Is every employee required to have a pulmonary function test? Our employees would be wearing
either an N-95 respirator or a loose fitting PAPR.
Answer: The respirator standard 1910.134(e) requires medical evaluations when respirators are worn that may place a physiological burden on the employee. This evaluation must be completed before fit-testing of the respirator. Medical evaluation procedures are given in paragraphs 1910.134(e)(2) through 1910.134(e)(7).
The employer is required to identify a physician or other licensed health care professional (PLHCP) to perform medical evaluations using a medical questionnaire or an initial examination that obtains the same information as the questionnaire. Under these procedures, it is the PLHCP’s responsibility to include any tests necessary to make a final determination on the employee’s ability to wear a respirator. 22
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Question 2: Is the employee health physician(or designate) responsible for completing 1910.134(App C) in its entirety if the employee is only wearing an N-95 respirator or a loose fitting PAPR.
Answer: Paragraph 1901.134(e)(4) discusses the Administration of the questionnaire and examinations. The requirements are that the questionnaire and examination be administered confidentially and during business hours and at a time and place, convenient to the employee. As discussed above, if the employer determines that they will provide examinations in lieu of questionnaires, the PLHCP shall obtain the same information as the questionnaire.
Your questions regarding the Hazardous Waste Operations and Emergency Response standards (1910.120) are as follows:
Question 1: OSHA standard 1910.120(q)(6)(i) describes competencies for first responders awareness training, but does not mention a minimum hour requirement. Is there a minimum hour requirement for awareness training?
Answer: First responder awareness level has no minimum time attached to the training. They must have sufficient training or have had sufficient experience to objectively demonstrate competency in specific topics listed in 1910.120(q)(6)(i).
Question 2: OSHA Standard 1910.120(q)(6)(ii) describes competencies for first responder operations training, with a minimum requirement of 8 hours. Is a training course that combines the first responder awareness and first responder operations competencies in 8 hours acceptable?
Answer: Training at the first responder operations level would qualify that individual to perform the duties of the awareness level, which is primarily limited to notifying the authorities of an emergency response incident.
Question 3: Is there a minimum competency or hour requirement for refresher training?
Answer: Paragraph 1910.120(q)(8) does not have a specified hourly requirement. It does state that refresher training shall be of sufficient content and duration to maintain their competencies, or shall demonstrate competency in those areas at least yearly.
I hope this information is useful and if you have further questions or need additional information please feel free to contact me at 804-786-0574.
Very truly yours, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ From: Clarence Wheeling To: rwerner@equinix.com Date: Fri, Jan 24, 2003 9:36 AM Subject: Fwd: RE: First Aid Kit Locations
Mr. Werner,
I have reviewed the First Aid Standard and discussed your question with Federal OSHA. Based on this information, I do not believe there is a violation of the Virginia Occupational Safety and Health standards for simply keeping the First Aid kit in the kitchen area.
My main area of concern would be the site where first aid is administered and if people eating in that area could be exposed to blood. An employee eating in near proximity to an area where blood is present would not be an acceptable condition. 23
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I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Nancy Jakubec 01/16/03 02:43PM >>>
Heard anything about this?
Rich Werner rwerner@equinix.com 01/16/03 10:56AM >>> Ms. Jakubec
Good Morning.
Equinix is located in Ashburn, VA. We are Internet data centers across the US and Pacific Rim. We have a very active Health and Safety program across our centers and recently came across an article in the Supervisors Safety Bulletin published by Progressive Business Publications of Malvern, PA that caused a great deal of discussion during our Safety Meeting. In the November 14, 2002 issue, an article stated that a company was fined by OSHA for having their First Aid kit located in a kitchen area where people occasionally ate their lunch.
The contention was that there is a risk of food contamination from bodily fluids by having the First Aid station located in the kitchen. In Equinix-Ashburn, as well as most of our sites, we have kitchen areas that have a refrigerator, microwave and toaster oven where food is prepared but is not eaten in the room as there are not any tables and chairs. We have located our First Aid kits in these kitchen areas.
Are we compliant? or do we need to move the First Aid station?
My concern is that I could move the First Aid station, but I can't control where people eat their food. We are a 7 x 24 company. Seeking guidance on this. I did consult our First Aid Station supplier, Zee Medical, and the 29CFR OSHA 1910 General Industry regulations.
Thank you.
Rich Werner Director Equinix Campus Ashburn, VA IBX (703)726-2601 _____________________ February 11, 1998
Lynn Sauebrunn 994D John Rolfe Drive Smithfield, VA 23430
Dear Ms. Sauebrunn;
I am writing in response to your request for an interpretation regarding the use of a Self Contained Breathing Apparatus (SCBA) respirator. Your question was whether one person using this device could be left by themselves, without other support. 24
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These devices are generally worn in Immediately Dangerous to Life and Health (IDLH) atmospheres and under these conditions do require that rescue personnel be available in case of an emergency. If you would like to provide me with the specific details regarding the use of these respirators, I would certainly try to give you a more exact answer to your question.
Additionally, the Virginia Safety and Health Codes Board recently adopted a new Respirator Standard (1910.134), which goes into much greater detail regarding the use of SCBAs and IDLH atmospheres. The proposed effective date of this standard is June 1, 1998. If you would like a copy of this standard, please let me know or you can obtain a copy from Federal OSHA’s Internet site (www.osha.gov).
If you need additional information or have further questions, please give me a call at 804-786-0574 or e-mail
me at clarencewheeling@doli.state.va.us.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
From: Clarence Wheeling To: Sparkledoggie@aol.com Date: Fri, Feb 28, 2003 8:24 AM Subject: Re: first aid
Paragraph 1910.151(b) simply states that “Adequate first aid supplies shall be readily available”. There is some guidance information in the 1910.151 Appendix A regarding the contents of first aid kit etc. The general guidance would be to consult with a healthcare provider or local emergency response unit and determine the types and severity of possible accidents in your facility and then follow their recommendations.
Below you will find a Federal OSHA interpretation from their website related to the requirements of first aid.
http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24118&p_text_ve rsion=FALSE
I hope this information is helpful. If you have further questions, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574
Fax: 804-371-7634 email: chw@doli.state.va.us
Sparkledoggie@aol.com 02/23/03 11:40AM >>>
What type of first aid kits, equipment or provisions are required by Virginia law for businesses? ___________
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June 18, 1998
Bryan D. Hill Public Health Corps, Inc.
Post Office Box 39253 Greensboro, North Carolina 27438-9253
Dear Mr. Hill
I am writing in regard to your request for interpretation on the use of tagging guns in the apparel industry and the hazards associated with the use of these devices. Specifically, your questions were as follows:
- Can OSHA impose fines on companies who use tagging guns but do not decontaminate the hollow bore needles? (In addition to listing the four protection measures please also note in your response the fact that the inside/outside and the metal rod that move back and forth within the hollow bore of the needle must be addressed and that wipes and sprays will not effectively accomplish this.)
Response: Failure to decontaminate or dispose of sharps that have been exposed to infectious materials covered by the Bloodborne Pathogen Standard (1910.1030) could result in a citation for failure to comply with this standard. Citations of this nature would probably be classified as serious which requires a monetary penalty.
Whenever it is reasonably anticipated that employees may be exposed to bloodborne pathogens, the employer must establish a complete bloodborne pathogen program as required by 1910.1030. Methods of eliminating employee exposure could include either, issuing each employee their own tagging gun or establishing a decontamination program if the guns are shared by employees. As you noted in your question, all contaminated parts of the tagging gun would need to be decontaminated, to eliminate employee exposure.
- Can alcohol be used to decontaminate these needles?
Response: In accordance with guidance from the Centers for Disease Control and Prevention (CDC), whenever reusable sharps have penetrated the skin or have otherwise had contact with blood, they must be disinfected with a disinfectant capable of killing the hepatitis B virus, i.e., a tuberculocidal disinfectant. Although alcohol may be sufficient to kill the human immunodeficiency virus (HIV), it is not effective against the more virulent hepatitis B virus.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _____________________ From: Clarence Wheeling
To: Patricia.Ackiss@absfirst.com Date: Wed, Oct 23, 2002 1:25 PM Subject: Red bags
Ms. Ackiss, There is no specific list of items that would be considered regulated waste under the Bloodborne Pathogen
Standard (1910.1030). I would refer you back to the regulation and the definition of regulated waste. There are also several interpretations on the OSHA website www.osha.gov that provide information on the subject of regulated waste.
You may also wish to visit the Department of Environmental Quality website http://www.deq.state.va.us/ , since that Department has regulations covering the disposal of biological waste. 26
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I hope this information is of assistance. If you have further questions, or need additional information, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us >>> "Ackiss, Patricia" Patricia.Ackiss@absfirst.com 10/16/02 04:08PM >>>
Our facility is residential. I have a question from Housekeeping: Is there a list of items that are contaminated that must be placed in red bags? I am referring to sheets, clothes, etc... that may have blood, urine, or other bodily fluids on them. I have searched the website and the OSHA website but cannot find a specific list.
Patsy Ackiss, Administrative Assistant QMS Department The Pines * Crawford Campus 825 Crawford Parkway * Portsmouth, VA 23704 Phone (757) 391-6744 * Fax (757) 391-6738 ______________________________ From: Clarence Wheeling To: Hakan.Dagli@Mjh.org Date: Wed, Nov 13, 2002 11:12 AM Subject: Re: Fwd: Compliance
Dr. Dagli
In your letter you did not say whether your company is a partnership or a corporation. In either case, both you and the other physician would be considered employees for OSHA purposes. While your medical training would probably meet most training requirements under the Bloodborne Pathogen Standard, your business is required to have all programs that are related to your business. Depending on the activities in your practice, Pantops Family Medicine would at least be required to have a Hazard Communication program and a Bloodborne Pathogen Exposure Control plan.
Even though you state that your employees are leased from a local hospital, generally you will be considered as their employer. This means that while the hospital may provide some training, you would be held responsible for any training related to your company, e.g. location of programs, records required by any of these standards.
Additionally, the Bloodborne Pathogen standard now contains requirements from the Needlestick Safety and Prevention Act. This means that you must review and implement safer needle devices. It also requires that
employees have input into this review process. For additional information on these and other OSHA related matters, I would recommend visiting the OSHA website www.osha.gov .
I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us >>> Glenn Cox 11/12/02 09:06AM >>> 27
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Hakan.Dagli@Mjh.org 11/12/02 08:54AM >>>
Dear Mr. Cox
I am one of two family physicians who has recently opened a family medicine clinic in Virginia. All our employees (2 receptionists and 2 nurses) are leased through a local hospital and they have appropriate OSHA training prior to starting through the hospital. My question is: Do I and my partner have to have training as well to be in compliance with regulations? I am having a difficult time finding the answers to this question considering we are the owners of the company and not employees.
I am also interested in finding out about any and all other compliance issues such as worksite safety, self inspections and record keeping.
Thank you for your time,
Hakan A. Dagli, M.D.
Pantops Family Medicine 215 Wayles Lane, Suite 150 Charlottesville, Va. 22911 (434) 979-4440
CC: Glenn Cox __________________
From: Clarence Wheeling
To: Bill McKeldin Date: Mon, Jan 6, 2003 1:39 PM Subject: Re: VOSH REPORTING REQUIREMENTS
Mr. McKeldin,
The Virginia Department of Labor and Industry administers the occupational safety and health regulations in Virginia through the Virginia Occupational Safety and Health(VOSH) program. VOSH has adopted a Federal OSHA identical Hazard Communication Standard(1910.1200). For copies of this regulation and enforcement guidance you can visit the OSHA website www.osha.gov For a copy of any required posters in Virginia, please this department's website www.doli.state.va.us .
For environmental requirements in Virginia, I recommend that you contact the Virginia Department of Environmental Quality's website www.deq.state.va.us .
I hope this information is of assistance and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us 28
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"Bill McKeldin" wmckeld@mileone.com 12/30/02 12:14PM >>>
Sir
I am the Loss Control Manager for a large Maryland based auto sales and service corporation. We also have one store presently in Virginia. I am writing a corporate policy for my company on "Employee Right To Know" which covers the posting of specific Federal and State informational posters and chemicals in the work place. In Maryland there is law requiring that we must MSDS manuals for all of our auto service locations and, in addition, the Maryland Department of Environment (MDE) requires that a Chemical Information List (CIL) be completed to mirror the chemicals in the MSDS manual. MDE also requires that the CIL be updated every two
years and that a copy be provided to the MDE.
Is there a similar reporting requirement for CIL in the Commonwealth of Virginia?
I would appreciate your assistance in this matter.
Thank you,
William McKeldin Loss Control Manager Atlantic Automotive Baltimore, Maryland 410-602-6177 ext. 3104 __________________
From: Clarence Wheeling
To: hollandd@southsideccjb.com Date: Thu, Nov 7, 2002 8:57 AM Subject: Re: Fwd: Red Hazardous Waste Bags
Mr. Holland,
Urine is not generally covered under the Bloodborne Pathogen Standard(1901.1030) unless there is visible blood present. You may refer to the definition of "Other Potentially Infectious Materials" in the standard. For additional material on the above standard, I recommend visiting the OSHA website www.osha.gov .
Additionally, the Virginia Department of Environmental Quality(DEQ) regulates the disposal of medical waste.
Regarding your question, disposal of used urine testing containers is not covered by the medical waste regulations. I recommend that you visit the DEQ website http://www.deq.state.va.us/waste/wastereg120.html for more information on the disposal of medical waste in Virginia.
I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us 29
--- Page 30 ---
"Southside CCB" hollandd@southsideccjb.com 11/05/02 01:40PM >>>
Mr. Cox
This office does urine samples for drug/alcohol purposes of defendants. What are the Virginia state guidelines for disposal of urine testing containers? Are red hazardous waste bags necessary?
We have read the United States guidelines regarding disposal of such containers and understand we have to follow the state guidelines.
Please inform at your earliest convenience. You can either e-mail at this address or telephone myself or Susan Conwell at (434) 348-1035. Thank you.
Dave Holland
CC: Glenn Cox __________________
From: Clarence Wheeling To: Hakan.Dagli@Mjh.org Date: Mon, Jan 6, 2003 1:55 PM Subject: Re: MSDS requirements
Dr. Dagli,
The Virginia Occupational Safety and Health(VOSH) program has adopted the federal identical OSHA Hazard
Communication Standard(1910.1200). VOSH follows all guidance and interpretations issued by Federal OSHA.
For specific guidance, I recommend visiting the OSHA website www.osha.gov .
For specific guidance and interpretations of the HAZCOM standard and medicines, I recommend you visit the following site http://osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=INTERPRETATIONS&p_toc_level=0&p_key value . Then type in "medicine and MSDS" in the search block.
As you will see in the interpretations, 1910.1200(b)(6)(vii) pertains to solid drugs in their final form and for direct administration to patients. Also the interpretations place the responsibility for hazard determination on the manufacturer.
I hope this information is of assistance to you and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
30
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Hakan.Dagli@Mjh.org 12/30/02 09:28AM >>>
Dr. Wheeling
Sorry to email you about this (please forward to the correct person if needed).
Under section 1910.1200 (B)(6) (Vii), would my family medicine clinic need MSDS sheets on single dose intended for patient use of liquid injectable medication bottled by manufacturer (such as Promethazine, Rocephen (antibiotic), Hep B vaccine, epinepharine, depo Medrol (IM injection birth control)? Normal Saline?
what about multidose vials such as Lidocaine anesthetic?
what about liquid wound cleansers such as Betadine and phisohex?
what about Eye wash solution?
Again, I am sorry to bother you. If there is someone else I should contact with a future question could you please pass their contact info to me.
Happy Holidays,
Hakan A. Dagli, M.D.
Pantops Family Medicine 215 Wayles Lane, Suite 150 Charlottesville, Va. 22911 (434) 979-4440 __________________
July 9, 2002
Robert J. Gribben Safety Consulting Services, Inc.
P. O. Box 13968 Roanoke, VA 24038
Dear Mr. Gribben
I am writing in response to your request for clarification of the General Industry standard, “Occupational Exposure to Hazardous Chemicals in Laboratories - 1910.1450".
Specifically your questions were
- Are laboratories in colleges and universities which are used by the professors to teach students and/or for
research purposes considered laboratories under the above referenced standard?
Answer: Academic laboratories, both for teaching purposes and research, are within the scope of the Laboratory Standard. Federal OSHA has determined that operations that meet the definition of “laboratory scale” and “laboratory use” are covered by the standard. The main laboratories exempt from this standard are QC/QA laboratories in manufacturing establishments.
- If the above is true, are students covered even though they are not “employees” by definition?
31
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Answer: The Virginia Occupational Safety and Health regulations are only applicable to situations involving an employer-employee relationship, therefore, students that are not employed by the institution would not be covered by this standard.
- Likewise are graduate students who utilize the laboratory for thesis research, but who are not “paid” as “employees” covered?
Answer: Graduate students that are not paid would not be covered by the standard.
I hope this information is useful and if you have further questions or need additional information please feel free to contact me at 804-786-0574.
Very truly yours,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director _________________
From: Clarence Wheeling To: BARBARARUDICH@aol.com Date: Tue, Nov 19, 2002 8:24 AM Subject: Re: Fwd: Internet Inquiry
Thank you for your inquiry. The Virginia Occupational Safety and Health program is responsible for administering the OSHA program in Virginia. One of these regulations is the Bloodborne Pathogen Standard (1910.1030). This standard requires containing "regulated waste materials", as defined in the standard, in a labeled container depending on the nature of the waste. Where these materials are actually disposed of is the
responsibility of the Department of Environmental Quality (DEQ). Information of DEQ's medical waste regulations can be found on their website: http://www.deq.state.va.us/waste/wastereg120.html .
I hope this information is helpful. If you have further questions or need additional information, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
BARBARARUDICH@aol.com 11/18/02 03:30PM >>>
I AM CURRENTLY TAKING A CPR/ FIRST AID THROUGH STAFFORD COUNTY SCHOOLS WOULD
LIKE SOME UNFORMATION WHERE YOU DISPOSE OF WASTE AND SOME OF THE QUICK
GLANCE CARDS. THANK YOU IN ADVANCE
SINCERELY __________________
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From: Clarence Wheeling To: KOtero@saraleecoffee.com Date: Thu, Jan 16, 2003 2:28 PM Subject: Re: Fwd: MSDS sheets
Ms. Otero,
Question 1) Do we have to, or should we file "articles" that are exempted from HazCom standard (ex. lamps)
Answer: If an item meets the definition of an "article" it is exempt from the requirements of the Hazard Communication Standard (1910.1200).
Question2) If there is a chemical that is slightly different due to dyes, do we have to label each one?
Answer: This question depends on several factors such as, whether the product is used in-house and the generic properties of the chemicals. I would need more information before I could answer the specific question.
Guidance on labeling and other Hazard Communication issues can be found in the OSHA Compliance Directive CPL 2-2.328D. This document can be found on the Federal OSHA website www.osha.gov .
If you have further questions or need additional information, please feel free to contact this office,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Glenn Cox 01/15/03 09:22AM >>>
"Otero, Karen" KOtero@saraleecoffee.com 01/14/03 04:31PM >>> Hello,
I have a question in regards to M.S.D.S. sheets. We are reorganizing ours, and would like to know the following:
-
Do we have to, or should we file "articles" that are exempted from HazCom standard (ex. lamps)
-
If there is a chemical that is slightly different due to dyes, do we have to label each one?
Thank you Karen A. Otero __________________
From: Clarence Wheeling To: Hickey, Barry
Date: 3/10/03 10:48 AM Subject: Re: Protective clothing in construction industry
I have attached a copy of an interpretation from the Federal OSHA website www.osha.gov pertaining to this issue. The practice of wearing short pants depends upon the nature of the work and whether this practice would create a safety hazard. 33
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I hope this is helpful. If you have further questions, please feel free to contact this office.
Clarence Wheeling
April 17, 1997
MEMORANDUM FOR: REGIONAL ADMINISTRATORS STATE DESIGNEES
FROM: FRANK STRASHEIM Acting Deputy Assistant Secretary
SUBJECT: Citations for the wearing of short pants by employees engaged in hot tar and asphalt construction work
In response to concerns raised by the Senate Appropriations Committee, OSHA has reviewed its enforcement policy regarding the standard on personal protective equipment (PPE) in the construction industry and the hazards arising from employees wearing short pants during hot tar and asphalt construction activities. The committee has expressed concern that the agency may apply the standard without taking into account the risk that may be imposed by literal compliance with the standard. The standard that has sometimes been cited for violations relating to the use of PPE, including protective clothing, is 29 CFR 1926.28(a). Federal citation policy issued some time ago, however, is that the use of appropriate PPE be governed by 29 CFR 1926.95(a) rather than 1926.28(a).
As you know, 1926.95(a) requires protective equipment to be worn "whenever it is necessary by reason of hazards...." Thus, where employees are exposed to the hazard of hot tar or asphalt getting on their skin and burning them while doing work on a road surface, it is appropriate that proper skin covering be worn to provide
protection. While the standard does not specify any particular kind of protection, such as long pants, employers do have the responsibility to decide which workers are exposed to the hazard and thus require protective clothing and which methods should be used to comply with the standard.
Other factors may exist, however, which would pose a greater safety or health hazard than that of being burned by hot tar or asphalt. In such cases a citation of the PPE standard for lack of skin protection may not be appropriate. Naturally, workers at the site who are not exposed to the hazard of hot tar or asphalt coming into contact with their skin would not be required by the regulation to wear any kind of PPE intended to provide protection against that danger.
To ensure consistency in the future application of 1926.95(a), compliance officers shall be instructed to carefully balance the need for personal protective clothing, such as long pants, during hot tar and asphalt operations against the need for clothing that is appropriate for severe environmental conditions such as extremely warm weather.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
34
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"Hickey, Barry" Barry.Hickey@FairfaxCounty.gov 03/10/03 10:37AM >>>
I am looking for information regarding protective clothing required in the construction industry, particularly the wearing of shorts (short pants).
Can you direct me to the appropriate regulations?
Thanks in advance.
Barry J. Hickey Planning Support Branch Planning and Design Division Department of Public Works and Environmental Services County of Fairfax VA (703) 324-5804 e-mail Barry.Hickey@co.fairfax.va.us
CC: Glenn Cox _____________________ From: Clarence Wheeling To: MICHAEL SHARP Date: 3/27/03 6:37AM Subject: Re: Decapping and Recapping of Blood collection Tubes
Mr. Sharp,
After reviewing the Bloodborne Pathogen Standard and the Federal OSHA online interpretations (www.osha.gov), I was unable to find a specific reference to your question. During discussions with several occupational health specialists and a Federal OSHA representative, the consensus was that while there is no explicit prohibition of recapping the tubes in the Bloodborne Standard (1910.1030), the practice of recapping blood tubes with the original cap would certainly not be recommended. This practice would certainly introduce additional opportunities for employees to come in contact with potentially infectious material.
I would recommend looking into alternative methods of recapping that are in accordance with professional clinical laboratory guidelines.
I hope this information is helpful. If you have further questions, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
MICHAEL SHARP MSHARP@RHCC.com 03/25/03 04:14PM >>>
Mr. Wheeling,
I am currently working as a department supervisor at Rockingham Memorial Hospital and would like to know if VOSH has a standard addressing the Decaping and recapping of blood tubes. I have had staff members question 35
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whether we should discard the original cap once it is removed and replace it with a new one once the tube has come off the instruments. We provide shields to Decap the specimens under and it is my feeling that these contaminated caps should be discarded once removed. I would like to Thank You in advance for any help you may be able to provide concerning this.
Sincerely, Michael L. Sharp, MT (ASCP) __________________
From: Clarence Wheeling To: KMiller890@aol.com
Date: Wed, Mar 5, 2003 7:35 AM Subject: Re: Fwd: OSHA/HIPAA?'s
Regarding the OSHA Bloodborne Pathogen Standard (1910.1030) requirements, the Virginia Occupational Safety and Health program has adopted the identical standard and follows the identical enforcement guidelines and interpretations. Information on this standard can be found on the OSHA website www.osha.gov . On the right-hand side of the homepage you will see standards, interpretations and directives. The Bloodborne Pathogen compliance directive is CPL 2-2.69.
Paragraph (1910.1030(f)(3) deals with post-exposure evaluation, including the consent issue.
Attached is the website for the Virginia Code Commission which contains all of the laws and regulations in Virginia http://leg1.state.va.us/000/src.htm . You can do any search you wish under this site such as blood, HIV, consent etc. There are a couple references under 32.1-45.1, which cover the issue of deemed consent for health care providers and 32-1-45.2 which covers protections for public emergency response personnel. These references are not under the jurisdiction of the Department of Labor and Industry.
If you have further questions or need additional information, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Nenette Alfonte 03/04/03 09:40AM >>>
Can any of you answer the following questions for me? I appreciate it.
Thanks, Nenette
KMiller890@aol.com 03/04/03 09:02AM >>>
We have done our yearly OSHA compliance training seminar and a question about consent came up.
How are the VA privacy and consent regulations different from Federal? Is there a document of VA requirements for OSHA/HIPAA? 36
--- Page 37 ---
Where do I locate overall VA rules for consent, privacy, OSHA etc.? DO they differ from Federal?
A specific question was in the case of an exposure incident with a needle stick are you required to get consent from the patient to test their blood for HIV and HBV? If so does consent need to be in writing? Is there a VA document that explains this?
Also, along the lines of privacy falling under HIPAA where are VA's rules?
Thanks K. Miller
CC: Glenn Cox; Nancy Jakubec; Nenette Alfonte __________________
November 21, 2001
Glenn Smith Glenn Smith Associates, Inc 3310 Nuttree Woods Place Midlothian, VA 23112
Dear Mr. Smith
I am writing in response to your letter to Mr. Warren Rice requesting an interpretation of the Hazard Communication Standard and its application to steel shot manufactured from recycled scrap steel. Generally, the only requirement that the Hazard Communication Standard (1910.1200) places on the non-manufacturing scrap dealers is that they send their downstream users those labels and MSDSs received from employers who
have scrapped the materials. For additional information on this topic, I would recommend that you visit the Federal OSHA website www,osha.gov . The OSHA compliance directive CPL 2-2.38D contains more information about the MSDS requirements of scrap dealers in Appendix A. Additionally, OSHA has issued several letters of interpretation regarding the above subject.
I hope this information is helpful and if you have further questions or need additional information, please feel free to contact this office.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director
Cc: Warren Rice _____________________
February 11, 1998
W. E. Stader Safety Consulting Services, Inc. 25 Franklin RD.
Roanoke, Virginia 24011
Dear Mr. Stader;
I apologize for the delay in responding to your request for interpretation of the asbestos and lead standards. As we discussed on the phone, both EPA and Local Building regulations require an inspection for asbestos 37
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containing material prior to any renovation work and OSHA regulations require the owner to provide this information to the contractor. While this information does not have to be in writing, I would recommend obtaining it in writing whenever possible. Based on this information, the contractor could accept these results and not be required to conduct additional testing, assuming the results are negative. If during the construction, the contractor discovers questionable material that has not been tested, then additional testing should be done immediately.
The regulatory requirements for lead are quite different from asbestos. Firs, tthere are no requirements that building owners must have the building inspected for lead containing material prior to renovation. Second, all requirements for testing and evaluating the workplace for lead hazards are the responsibility of the employer and not the building owner.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
From: Clarence Wheeling To: Crocker.Charles Date: Tue, Dec 17, 2002 10:27 AM Subject: Re: Asbestos
Mr. Crocker,
The highlighted Virginia Administrative Codes in your e-mail are regulations adopted by the Virginia Department of Professional and Occupational Regulation (DPOR). DPOR is the state agency assigned the responsibility for licensing all professions in Virginia. Any questions regarding licensure should be directed to http://www.state.va.us/dpor/indexie.html .
Since Virginia is an OSHA state plan state, the Virginia Occupational Safety and Health program is responsible for regulating safety and health in the workplace. The Virginia Safety and Health Codes Board has adopted the Federal identical OSHA Asbestos standard for Construction(1926.1101).
All training requirements for Class III activity as well as the Competent Person training requirements are included in the OSHA standard 1926.1101(k)(9)(v) and 1926.1101(o)(1-4).
I would recommend that you visit the Federal OSHA website www.osha.gov for additional information on this and other standards. Specifically, I would direct you to http://osha.gov/comp-links.html for information on interpretations and compliance directives. If you need further information on this issue please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us 38
--- Page 39 ---
"Crocker.Charles" Crocker.Charles@burlington.com 12/16/02 05:07PM >>>
I would like some guidance concerning asbestos compliance training for a General Industry employer (a manufacturer that has ACM in the facility on pipe insulation, floor tiles, surfacing materials, etc.) who wishes to develop an Asbestos Operations and Maintenance Plan within the following broad guidelines:
-
All Class I and II asbestos work will be contracted to licensed asbestos abatement contractors.
-
The employer's employees will perform Class III and IV asbestos work, but in no case will an employee perform more than 30 days of class III work during a year.
Considering both the OSHA requirements and the Virginia Administrative Code requirements found at the following website: http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+18VAC15-20-10 , I think it is clear that employees performing asbestos work for their employer would not be required to be licensed. But, the final statement in the VAC which reads as follows is what I would like guidance on: Employees who conduct asbestos response actions, inspections, prepare management plans or project designs for their employer, on property owned or leased by the employer, are exempt from Virginia asbestos licensure; however, they are required to meet all OSHA and EPA training requirements.
Specifically, my questions are
-
What would be the training requirements for the individual who develops and manages the asbestos Operations and Maintenance plan? Would it be the training as outlined in another Virginia Administrative Code found at http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+18VAC15-20-800 or would it be only the 16 hour course as required by 40CFR763.92(a)(1 and 2)?
-
What would be the training requirements of supervisors of such employees? Would it be what is laid out in the VAC http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+18VAC15-20-800 or would it again be the 16 hour course described in the 40 CFR mentioned above?
Any guidance you can provide would be appreciated. ______________________________ From: Clarence Wheeling To: Peggy Lopipero Date: Tue, Mar 11, 2003 9:15 AM Subject: Re: state level ergonomics standard
Ms. Lopipero,
The Virginia Occupational Safety and Health program(VOSH) almost universally adopts the Federal OSHA identical standards and this process does not require legislative involvement. Regarding the ergonomics standard, the Virginia Safety and Health Codes Board adopted the Federal OSHA Ergonomic Standard and in turn rescinded it after Congress took their action. Generally, the VOSH program maintains the "as effective as" status of Federal OSHA. I am not aware of any state efforts to establish an ergonomics standard.
The VOSH program does have a few state specific standards, which can be found on our website: http://www.doli.state.va.us/ . I hope this information is helpful and if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
39
--- Page 40 ---
Peggy Lopipero lopiper@itsa.ucsf.edu 03/10/03 05:46PM >>>
I am a researcher at the University of California, San Francisco interested in state regulatory measures pertaining to worker health and safety. My group plans to examine the use of research evidence and other factors in the regulatory process. We are hoping to use ergonomic workplace standards as a comparative case in a study that also examines the factors influencing the regulatory process in the development of workplace smoking restrictions (e.g., Maryland and Washington). We would like to know if there have been attempts at the state level to establish an ergonomics standard in Virginia? We are also interested in any failed attempts to adopt a standard. Assuming that either a successful or failed attempt exists, how might we obtain information pertaining to the legislative/regulatory history? Any information provided would be greatly appreciated.
Thank you in advance for your time and help.
Sincerely, Peggy Lopipero Peggy Lopipero, M.P.H.
Associate Specialist Department of Clinical Pharmacy School of Pharmacy 3333 California Street, Suite 420 Box 0613 San Francisco, CA 94143-0613 FOR EXPRESS MAIL ZIPCODE IS 94118 phone: (415) 502-1994 FAX: (415) 502-0792 pager: (415) 841-8534 email: lopiper@itsa.ucsf.edu AND plopipero@earthlink.net website at: http://www/ucsf.edu/clpharm/
CC: Glenn Cox; Nancy Jakubec __________________
From: Clarence Wheeling To: K Shields Date: Wed, Oct 23, 2002 2:16 PM Subject: Re: Indoor Air Regulation
I am not aware of any Federal OSHA or Virginia Occupational Safety and Health regulations in this area. I would recommend contacting the local building officials, because there are probably some recommend levels under the Uniform Statewide Building Code. You may also want to visit the United States Environmental Protection Agency's website www.epa.gov since have done some work in the area of indoor air pollution.
Another site to visit would be the National Institute of Occupational Safety and Health (NIOSH) www.cdc.gov/niosh
Hope this is helpful.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us 40
--- Page 41 ---
"K Shields" a311maniac@hotmail.com 10/22/02 11:25AM >>>
To whom it may concern,
I was hoping to find out whether or not there have been any regulations passed for Virginia stating that office buildings have to have outdoor air introduced.
Thank you for your time,
Kevin Shields Pulaski County ___________ Protect your PC - get McAfee.com VirusScan Online http://clinic.mcafee.com/clinic/ibuy/campaign.asp?cid=3963 ______________________________
January 21, 1999 James G. Browder, Jr. P.E.
Chief Engineer Department of Transportation
1401 East Broad Street Richmond, VA 23219 Dear Mr. Browder: This letter is in response to your request for interpretation of asbestos sampling and specifications in buildings which will be demolished. Your letter states that there appears to be conflicts between the EPA (NESHAPS) and OSHA regulations, regarding asbestos containing wallboard/joint compound. The differences in these
regulations are based on their intended purpose. EPA regulations are promulgated to protect the environment while OSHA regulations are designed to protect the workers.
Your specific questions are based on a demolition project performed under the following conditions:
-
a NESHAP-compliant inspection is performed on the wallboard system (i.e., composite samples of wallboard and joint compound) and the material is found to contain less than 1% asbestos;
-
all category I and II friable and non-friable ACM is removed except for the composite joint compound/wallboard system:
-
following the removal activities described in step 2 above, no demolition activities are performed within the building that would disturb the drywall system;
-
demolition is performed with heavy equipment by caving the structure and disposing of the pieces without mechanical compaction; and
-
during the demolition, the structure is sprayed with water to reduce dust.
The specific questions are
- Do DLI/VOSH standards require an OSHA-compliant analysis for the wallboard and joint compound prior to
demolition?
Answer: Based on the conditions described in the scenario above, it is my opinion that an OSHA compliant analysis would not be required. Some of the confusion appears to lie in the definition of demolition. It is this department’s opinion, that if the asbestos containing wallboard were being disturbed or removed as part of a renovation project, or being removed prior to actually tearing the building down, then the project would be
considered a Class II activity under the asbestos standard 1926.1101 and all applicable paragraphs would be 41
--- Page 42 ---
required. If the asbestos containing wallboard is left in the building as described in your scenario, it is my opinion that the project would not be covered under the asbestos standard, 1926.1101.
- Do DLI/VOSH standards require training beyond HAZCOM (1910.1200) for the demolition crew performing the demolition activities as described above?
Answer: No
- Is the operation described in paragraphs 1-5 above considered “Class I or Class II asbestos work” under
OSHA?
Answer: The Department of Labor and Industry would not consider the above scenario an asbestos abatement project.
- Would DLI require a twenty (20) day asbestos contractor notification pursuant to Section 40.1-51.20 of the Virginia Code to be filed for this job? We recognize that a NESHAP 10-day notice must be filed for all demolitions, irrespective of the presence or absence of asbestos in the building.
Answer: No
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely,
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director ______________________________ From: Clarence Wheeling To: George Tyler Date: Tue, Jan 7, 2003 7:30 AM Subject: Re: Smoking in the workplace...
Mr. Tyler,
There are currently no OSHA related regulations concerning smoking in the workplace, except for those instances where a fire or explosion could result from their improper use, e.g. use of flammable solvents.
There are some state laws regulating smoking under some conditions. For information on these rules, you may
visit the following website : http://leg1.state.va.us/000/lst/LS701351.HTM .
I hope this information is helpful and if you have further questions, please feel free to contact this office. You may also contact the Department of Labor and Industry, Regional Office located in Manassas at 703-392-0900.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
"George Tyler" gtyler@trgcomp.com 01/06/03 04:30PM >>>
Dear sir or madam
Kindly advise current applicable Virginia regulations regarding smoking and tobacco use in the workplace. 42
--- Page 43 ---
Ours is a privately-held business, under 50 employees, located in Arlington.
Many thanks in advance,
George Tyler Vice President The Republic Group 5801 Lee Highway Arlington, VA 22207 (p) 703-533-8555 x-241 (f) 703-533-2079 e-mail: gtyler@trgcomp.com __________________
From: Clarence Wheeling To: Mschop68@aol.com Date: 3/18/03 8:14 AM
Subject: Re: Work Environment Complaint Currently, neither the Virginia Occupational Safety and Health program or Federal OSHA have standards that regulate mold in the workplace. For information on this subject , I would recommend that you visit the Federal
OSHA website www.osha.gov . Once you are on their homepage you can simply type in "mold" in the search block.
I am sorry we cannot be of more assistance.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director
Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
Mschop68@aol.com 03/14/03 10:14AM >>>
I am not sure if this is the correct place to start but here goes. I work in a building where the office is located in the basement. There is an extreme amount of mold and mildew in that space causing everyone to have headaches, sore throats, and sinus problems. This has been a problem for over 1 year and when we complained the answer was to paint over the mold and place wall paper over the mold. They did not clean the area so the problem is still there.
The building is located at 659 Hospital Rd. Building A Suite 203 Tappahannock Va 22560.
I hope someone will do something about this because it has created great problems.
I wish to remain anonymous due to my job security. ________________
43
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July 20, 1999
E. Glenn Hargrove P.O. Box 660 Blacksburg, VA 24063-0660 Dear Mr. Hargrove;
This is in reply to your letter dated July 6, 1999, requesting clarification of the OSHA Asbestos regulation regarding asbestos containing paint and joint compound. Since you pointed out several discrepancies in the OSHA interpretations and did not ask specific questions except for the class of work for asbestos paint and joint compound, I will try to clarify the Department of Labor and Industry’s general position on these issues.
Generally, removal of asbestos containing paint and joint compound is a Class II activity. One of the discrepancies noted in your correspondence, concerned thick film, textured asbestos containing paint that resembles troweled or sprayed on surfacing material. Unless during the required inspection, the inspector found the material to be easily crumbled by hand pressure, I would not consider the material to be surfacing material.
This is in agreement with the April 21, 1998 letter signed by John B. Miles which you included in your request for interpretation. I spoke with the Department’s inspectors and they were not familiar with the use of asbestos paint being applied in a manner that resembles troweled or sprayed on surfacing material. My recommendation would be that if your consultants or students run into this type of material and have any questions about how to treat this material that they contact this office on a case by case basis.
While not mentioned in your letter, there has been some confusion regarding OSHA and EPA requirements as they relate to asbestos containing joint compound. As stated above, the internal disturbance of asbestos containing joint compound, such as internal demolition or renovation, is considered a Class II activity and requires compliance with the OSHA Asbestos standard 1926.1101. However, if the whole structure is demolished from the outside and the only asbestos present is asbestos joint compound, then OSHA considers this unclassified activity. Under these conditions, the competent person would evaluate the existing conditions and take appropriate action to protect any exposed employees. The EPA interpretations of the National Emission Standards for Hazardous Air Pollutants (NESHAPS), state that if asbestos containing joint compound is only utilized in sealing wall board joints or nail holes, the samples can be composited and therefore, are not normally considered to be asbestos containing material (ACM).
If you need additional information or have further questions, please give me a call at 804-786-0574 or e-mail me at clarencewheeling@doli.state.va.us.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________ From: Clarence Wheeling To: joey domm Date: Thu, Dec 26, 2002 8:49 AM Subject: Re: i was wondering if you could send me information current laws concerning smoking in the workplace
Mr. Domm,
The Virginia Department of Labor and Industry does not have any enforceable regulations concerning "Smoking in the workplace", except where smoking may cause a fire or explosion hazard.
The General Assembly did pass a law limiting smoking in public areas, but this agency has no enforcement authority for this law. If you would like more information on this law you may visit the following website:
44
--- Page 45 ---
http://legis.state.va.us/Laws/CodeofVa.htm . After you have reached this site, type "Smoking" in the search box and you will find the above mentioned law 15.2-2800-15.2-2810.
I hope this information is of assistance to you.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us
joey domm j_domm@yahoo.com 12/20/02 09:09PM >>>
well i have another question. if it is company policy that smoking is forbidden indoors at work then should the company provide designated areas. if so, are there any rules governing these areas? the reason i am asking is that my new boss (who is not a smoker) won’t let people smoke in the workshop anymore but there is nowhere else to smoke. ______________________________ From: Clarence Wheeling To: Ken Pracht Date: Thu, Mar 13, 2003 2:19 PM Subject: Re: Confined Spaces in Construction
Mr. Pracht,
Based on a strict reading of the Virginia Confined Space Standard for the Construction Industry CNSP.146, Paragraph 9A., it would be my recommendation that a retrieval device be made available. The standard specifically states that where a hazardous atmosphere "has been demonstrated" by the qualified person, the retrieval equipment shall be used.
While I understand your scenario regarding the ventilation and elimination of the hazardous atmosphere, I would refer you to Appendix E in the General Industry's Confined Space Entry Standard (1910.146). This appendix while not mandatory for the Virginia standard does outline the hazards associated with entry into a sewer system. Additionally, if the work being done on the sewer is considered "maintenance", then the General Industry Confined Space Standard 1910.146 would apply.
For further guidance on the Construction vs. Maintenance issue, I would refer you to the Virginia Administrative Regulations Manual which can be found on the Department of Labor and Industry website www.doli.state.va.us . Federal OSHA has also issued some guidance on their website www.osha.gov related to the construction vs maintenance work.
I hope this information is helpful. If you have further questions or need additional information, please feel free to contact this office.
Clarence Wheeling
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574 Fax: 804-371-7634 email: chw@doli.state.va.us 45
--- Page 46 ---
Ken Pracht KPRACHT@perryeng.com 03/04/03 08:35AM >>>
With regards to the VA Confined Space Standard for the Construction Industry, is a retrieval device necessary when entering a sanitary sewer manhole with a hazardous atmosphere if the hazardous atmosphere has been eliminated by forced ventilation? To put it another way; if the hazardous atmosphere is eliminated by forced ventilation prior to entry, there is no engulfment hazard, the entrant wears a continuous air monitoring device while in the manhole, and an attendant monitors the forced ventilation so that in the event of failure the entrant can be notified and instructed to evacuate the confined space, would it be acceptable to eliminate the retrieval device?
This question is not related to any VOSH enforcement activity. I simply want to determine whether we need to
take additional steps to ensure compliance.
Your response would be appreciated.
Ken Pracht, CSP Safety Director Perry Engineering Co., Inc. (540) 667-4310
CC: Glenn Cox; Jay W. Withrow __________________
June 19, 1998
Rod Kunkel 102 Windway Drive
Orange, Virginia 22960
Dear Mr. Kunkel
I am writing in regard to your request for information concerning smoking in the workplace. At the present time, there are no regulations regarding smoking in the workplace in Virginia. Federal OSHA is currently working on an Indoor Air Quality standard that affects workplaces, but it appears this regulation will not be out for some time. The United States Environmental Protection Agency (EPA) has a clearinghouse on Indoor Air Quality information, which can be reached at 800-438-4318.
If you need additional information or have further questions, please give me a call at 804-786-0574.
Sincerely, Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director __________________
From: Clarence Wheeling To: MnMzMama@aol.com Date: Fri, Jan 24, 2003 10:47 AM Subject: Re: OSHA Question
The Virginia Occupational Safety and Health program does not have regulations covering this issue at this time.
As you are probably aware Federal OSHA has been working on an Ergonomic Standard which might apply to your situation, but these regulations have not been finalized. 46
--- Page 47 ---
I am forwarding your e-mail to the Labor and Employment Law Division to address the issue of charging for the headset. You should be receiving a response from them shortly.
Sorry I cannot be of more assistance, but if you have further questions, please feel free to contact this office.
Clarence H. Wheeling, Ph.D.
Occupational Health Compliance Director Virginia Department of Labor & Industry 13 S. Thirteenth St.
Richmond, VA 23219 Tel: 804-786-0574
Fax: 804-371-7634 email: chw@doli.state.va.us
MnMzMama@aol.com 01/17/03 04:06PM >>>
Dear Mr. Wheeling
I'm not sure if you are the person who can answer this question but if you are not, would you please route this to the appropriate person.
If a person's job has a job which is only on the phone is the only employer obligated to provide telephone headsets to alleviate neck stiffness. Also, if headsets are provided, is it lawful for the employer to charge the employee for the headset?
The job entails answering the phone and taking orders on the phone for shifts which range from 4-8 hours.
Thank you for your assistance,
Regards,
Wendy Welch __________________
July 22, 2003
Dear Ms. Hudson
I am writing in response to your e-mail addressed to Governor Warner concerning allergies and asthma triggered by scents in public places. The Governor appreciates your taking the time to share your concerns with him.
The Virginia Department of Labor and Industry administers the occupational safety and health
regulations in Virginia through the Virginia Occupational Safety and Health (VOSH) program. The VOSH program operates under an Occupational Safety and Health Administration (OSHA)-approved state plan, which covers all occupational safety and health concerns for Virginia. As a state with an approved plan, Virginia must provide employee protection that is “at least as effective” as Federal OSHA’s but may be more stringent.
The VOSH standards cover a variety of workplace conditions. The agency has no standards, however, that specifically address allergies or asthma triggered by scents in the workplace and other indoor air quality related conditions. The Federal OSHA indoor air quality regulation proposed in 1994 has been withdrawn and Federal OSHA is not initiating such rule making at this time. Since there are no Federal OSHA standards 47
--- Page 48 ---
regulating indoor air quality, under the state plan agreement with Federal OSHA, the agency is not obligated to adopt an indoor air quality standard.
The Virginia Department of Labor and Industry’s VOSH program enforces laws concerning occupational safety and health issues. However, there are limitations to our authority. One of these limitations involves the applicability of VOSH’s jurisdiction. VOSH’s jurisdiction is limited to employment performed in a workplace. As such, VOSH can regulate employers and employees but has no authority over merchant/customer relationships. If you have concerns regarding workplace conditions that you believe impact employee safety and health, I recommend you contact the nearest department office. Locations and phone numbers can be obtained from the department Web site: www.doli.state.va.us.
Lastly, the Virginia Safety and Health Codes Board is the designated state agency authorized to make rules and regulations governing safety operations. However, such authority can only be exercised under instruction from the Virginia General Assembly. At present, the Virginia General Assembly has not passed any bills regulating the use of scented products such as colognes and perfume in the workplace. If you feel that such policy is necessary I would encourage you to correspond with your legislators in an effort to promote change by utilizing the democratic process. For your convenience, I have attached a pamphlet entitled How a Bill Becomes A Law In Virginia which summarizes the procedures whereby a bill becomes a law in the Commonwealth of Virginia.
I hope this information is helpful to you in addressing the concerns raised by your letter.
Best personal regards,
Ronald L. Graham Occupational Health Compliance Director
cc: The Honorable Michael J. Schewel, Secretary of Commerce and Trade __________________
48
Use of Polygraphs in EmploymentDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER TWO
USE OF POLYGRAPHS IN CERTAIN EMPLOYMENT SITUATIONS
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions
Last Revised October 2007 Use of Polygraphs – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI.
Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Use of Polygraphs – Page 3
- 00 Prohibition of Use of Polygraphs in Certain Employment Situations
A. Coverage
The Prohibition of Use of Polygraphs in Certain Employment Situations is set forth in§ 40.1-51.4:4 of the Code of Virginia and applies to all law enforcement agencies of the Commonwealth.
B. Summary
This statute prohibits law enforcement agencies from requiring their employees to submit to a lie detector test, except the chief executive officer of a law enforcement agency may by written directive require an employee to submit to a lie detector test related to a particular administrative investigation concerning allegations of misconduct or criminal activity.
C. Definitions
-
“Lie detector test” means any test utilizing a polygraph or any other device, mechanism or instrument which is operated, or the results of which are used or interpreted by an examiner for the purpose of purporting to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.
-
“Law-enforcement agency” means an agency which employs persons with the power of arrest. The Departments with this authority are the State Police, the Capitol Police, the Virginia Marine Resources Commission, the Virginia Port Authority, the Department of Alcoholic Beverage Control, the Department of Motor Vehicles, the Police Departments of political subdivisions or campus police departments of public institutions of higher learning where that force or bureau has ten or more employees, and the Internal Affairs Division of the Department Corrections.
-
“Administrative investigation” means an ongoing investigation involving allegations of misconduct or criminal activity such as theft, embezzlement, or misappropriation.
D. Exemption for Chief Executive Officer of the Law-enforcement Conducting Investigations of Misconduct or Criminal Activity.
The chief executive officer of the law-enforcement agency may only require an employee to submit to a lie detector test if the following conditions are met:
-
The request is made in writing.
-
The test is administered in connection with an ongoing investigation involving Use of Polygraphs – Page 4
misconduct or criminal activity.
For the ongoing exemption to apply, the investigation must be of a specific incident or activity. Thus, for example, the chief executive may not request that an employee or employees submit to a polygraph test in an effort to determine whether or not any thefts have occurred. Such random testing is specifically prohibited by this statute. Further, by limiting the exemption to a specific incident or activity, the chief executive is precluded from using the exemption in situations where the so-called ongoing investigation is continuous. For example, the fact that items in inventory are missing from the warehouse in a given month, this in and of itself, would not be a sufficient basis to meet the specific incident requirement without evidence of intentional wrongdoing. Administering a polygraph test in such circumstances, without identification of a specific incident or activity and a “reasonable suspicion that the employee was involved” would amount to little more than a fishing expedition.
- The chief executive officer provides the employee with a written statement in a language easily understood which fully explains with particularity the specific incident or activity being investigated and the basis for testing particular employees which contains at a minimum.
(1) An identification with particularity of the specific misconduct or criminal activity.
(2) A statement specifically describing the employee’s access to the property that is the subject of the investigation.
(3) A statement describing in detail the basis of the chief executive’s reasonable suspicion that the employee was involved in the incident or activity under investigation.
- The employer should maintain a copy of the statement for at least one year and have it available for inspection on the request of DOLI.
E. Case Assignment
-
Regional, Field, or Central Office staff person receives complaint. Complaint must be received within 90 days of the alleged violation.
-
The claimant should be requested to write a letter documenting all information relevant to the alleged violation such as a copy of the written directive issued by the chief executive officer; date the polygraph was administered, if applicable; all documentation surrounding the claimant’s dismissal, demotion, etc. . F. Investigation Use of Polygraphs – Page 5
-
Interviews complainant.
-
Interviews employer (chief executive officer).
-
Interviews all persons having knowledge of the alleged misconduct or criminal activity under investigation.
-
Reviews written directive of chief executive officer.
-
Reviews agency’s policy for handling employee misconduct and criminal activity.
-
Upon review of all facts, findings, testimonies, etc, Representative determines the validity of the complaint.
G. Informal Resolution
Representative will attempt informal resolution
- Discuss findings and determination with employer.
2. Inform employer
(1) To cease and desist violations detected.
(2) In the case of discharge or demotion, immediately reinstate the employee(s) with back pay plus applicable interest.
(3) The Commissioner may issue an order compelling reinstatement and back pay with applicable interest.
Public Sector Workshop Safety Inspection ProgramDoc ID: 14-205
--- Page 1 ---
VOSH Program Directive: 14-205 Issued:April 20, 1990 Reissued:April 1, 2003
Subject: Public Sector Local Emphasis Program; Public Work Shops
A. Purpose.
This revised directive updates old references and renumbers this LEP to conform to the VOSH program directives’ new classification and numbering system (See VOSH Program Directive 01-001A).
This directive continues the Local Emphasis Program (LEP) in Public Sector Workshops.
B. Scope.
This directive applies to all VOSH personnel and specifically to Occupational Safety Compliance personnel.
C. Reference.
Not Applicable.
D. Cancellation.
VOSH Directive 02-205 (September 22, 1988)
E. Action.
Directors and Managers shall assure that procedures established in this directive are adhered to in scheduling Public Sector Workshop Inspections.
F. Effective Date.
April 1, 2003
G. Expiration Date.
Not Applicable.
--- Page 2 ---
H. Background.
A pilot Local Emphasis Program was initiated in the Southwest Safety Region during the last quarter of 1987. The first 13 inspections resulted in 27 serious violations and 59 other-than-serious violations (total of 86 violations, 6.4 violations per inspection).
Based on the statistical data gathered by the pilot project and the high frequency of violations, the Department determined that increased inspection activity in the form of an LEP was warranted and should be continued.
Public Sector Workshops generally consist of operations involving
automotive/mechanical repair on buses, cars, tractors, machinery and have the associated tools and machine shop equipment to work on such things as brakes, engine repair, body repair, etc.
I. Procedures.
The Director of VOSH Programs shall ensure that each Regional Director develops a Public Workshop establishment list made up of all establishments identified as likely to be a public workshop, as defined above.
(1) Sources. To develop the establishment list the Regional Directors shall use whatever sources of information that are available to the degree that they are reliable. Examples of such sources include but are not limited to local
knowledge, past inspection reports, trade journals or newspapers, local media reports, and the yellow pages, irrespective of whether or not a violation is alleged or indicated.
(2) Adjustments. Prior to using the Public Workshop establishment list for scheduling purposes, deletions shall be made as necessary or appropriate.
(3) Deletions. As soon as it becomes clear that an establishment on the list is not within the definition of public workshop as defined in Section H., the establishment shall be deleted, even if it has already been scheduled for inspection or if the inspection has already begun.
J. SCHEDULING INSPECTIONS.
The following guidelines shall be adhered to in scheduling inspections.
(1) All establishments on the Public Workshop establishment list shall be inspected except those establishments deleted from the list.
(2) Establishments selected for inspection may be scheduled in any order that makes
2
--- Page 3 ---
efficient use of available resources.
(3) All inspections scheduled pursuant to sections I. and J. shall be conducted, even if they must be carried over into the next fiscal year.
(3) When an inspection is not conducted because the employer has refused entry, a warrant shall be sought in accordance with the current procedure for handling such refusals.
(5) Inspections conducted under the LEP normally shall be wall to wall inspections.
K. RECORDING IN IMIS
The following guidelines shall be followed when recording inspections conducted under this LEP. For IMIS purposes the VAOSH-1 will be completed as follows:
(1) Inspection Type
- (Mark either)
b. ___ Local Government
or
c. ___ State Government
- Programmed
h. X Planned
B. If no inspection is conducted pursuant to "I.(3) Deletions," the VAOSH-1 will be completed as follows:
- If no inspection conducted, mark "X" in box
X Other
C. Ray Davenport Commissioner
3
--- Page 4 ---
Distribution: Commissioner of Labor and Industry Directors and Managers VOSH Compliance Staff Cooperative Programs Staff Legal Support Staff OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms
shall be considered to read as below
Federal Terms VOSH Equivalent
29 CFR VOSH Standard
Regional Administrator Commissioner of Labor and Industry
Area Director Regional Director
Regional Solicitor Attorney General or VOSH Office of Legal Support (OLS)
Agency Department
Office of Statistics VOSH Research and Analysis
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
Field Inspection Reference Manual (FIRM) VOSH Field Operations Manual (FOM)
4
Primary Metal Industries Worker Safety InitiativeDoc ID: National
--- Page 1 ---
DOLI
VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-216A ISSUED: 15 March 2015
SUBJECT National Emphasis Program B Primary Metal Industries
Purpose CHANGE I describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures to harmful chemical and physical health hazards in facilities in the Primary Metal Industries, indicated by their NAICS/SIC codes in Appendix “B” of this Directive.
CHANGE II describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures to harmful chemical and physical health hazards in facilities in the Primary Metal Industries, such as iron foundries and establishments that manufacture nails, insulated wires and cables, steel piping, and copper and aluminum products, under Major Group 33 in the Standard Industrial Classification (SIC) Manual, and now under the North American Industry Classification System (NAICS). This NEP will also heighten health and safety awareness with the affected industries of the potential for worker exposure to harmful chemical and physical health hazards so that employers may voluntarily take steps to correct hazards and comply with the applicable safety and health standards.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This directive applies to all VOSH personnel, and specifically Occupational Health Compliance and Consultation Services personnel.
References CHANGE I: OSHA Instruction CPL 03-00-013 (May 19, 2011) CHANGE II: OSHA Instruction CPL 03-00-018 (October 20, 2014)
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Director and Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Regional III & Norfolk Area Offices Legal Support & IMIS Staffs
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[TABLE 1-1]
| OLI
VOSH Virginia Occupational Safety & Health |
DOLI | OLI | VOSH
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Expiration Date Not Applicable.
Cancellation VOSH Program Directive 14-216 (September 1, 2011)
Effective Dates CHANGE I: 01 September 2011 CHANGE II: 15 February 2015.
Action Directors and Managers shall ensure that the policies and procedures established in this Directive are followed.
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When the guidelines, as set forth in this Program Directive, are applied to the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Commissioner
Area Director Regional Director VOSH Program Director
Area Office/Regional Office Regional Office
Regional Solicitor Attorney General or VOSH Division of Legal Support
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) Compliance Safety and Health Officer (CSHO) and/or Industrial Hygienist and/or Industrial Hygienist
OSHA Directives: VOSH Program Directives
CPL 02-00-150, Field Operations Manual PD 02-001G or its successor, VOSH Field (FOM) (04/22/11) Operations Manual (FOM) (10/01/13)
CPL 02-02-038 (CPL 2-2.38D), Inspection PD 02-060A, Inspection Procedures for the Procedures for the Hazard Communication Hazard Communication Standard (09/15/98) Standard (03/20/98)
CPL 02-00-158, Inspection Procedures for the PD 02-411A or its successor, Inspection Procedures Respiratory Protection Standard (06/26/14) for the Respiratory Protection Standard (09/30/14)
CPL 03-00-007, National Emphasis Program - PD 14-410 or its successor, National Emphasis Crystalline Silica (01/24/08) Program - Crystalline Silica (5/15/08)
CPL 03-00-009, National Emphasis Program- PD 14-437B or its successor, National Emphasis Lead (08/14/08) Program: Lead (12/15/14)
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Table of Contents I. Purpose ............................................................................................................................................ 1
II. Scope ................................................................................................................................................ 1
III. References. .................................................................................................................................... 1
IV. Cancellations .................................................................................................................................... 1
V. Expiration ......................................................................................................................................... 1
VI. Significant Changes .......................................................................................................................... 1
VII. Application ....................................................................................................................................... 2
VIII. Background ...................................................................................................................................... 2
IX. National Emphasis Program Goals ................................................................................................... 3
X. Program Procedures ........................................................................................................................ 3
XI. Outreach .......................................................................................................................................... 5
XII. Inspection Procedures ..................................................................................................................... 6
XIII. Consultation ................................................................................................................................... 14
Appendix A- Chemical Exposure Hazards Found in Primary Metals Industries ......................................... A-1
Appendix B – Primary Metal Industries – SIC/NAICS Codes ...................................................................... B-1
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SUMMARY
OSHA inspection history has shown that individuals employed in the Primary Metal Industries are exposed to serious safety and health hazards on a daily basis. Previous inspections of primary metal establishments have resulted in citations for overexposures to a wide variety of health hazards including chemical exposures in foundry operations as well as physical stressors such as noise and heat. This Directive describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures in facilities under the Primary Metal Industries, such as iron foundries and establishments that manufacture nails, insulated wires and cables, steel piping, and copper and aluminum products. This NEP will also heighten health and safety awareness within the affected industries of the potential for worker exposure to harmful chemical and physical hazards so that employers may voluntarily take steps to correct hazards and comply with current with safety and health regulations and practices.
Significant Changes
This Directive describes a new initiative by the Occupational Safety and Health Administration.
From May 19, 2011, until September 30, 2014, this was a three-year NEP with required inspection goals.
As of October 1, 2014, this discontinued the required programmed inspection goals, but it will retain the NEP’s inspection procedures, citation guidance, and outreach information for continued reference by Regional Offices as a way to assure that inspections conducted under this Directive continue to address the health-related hazards in these industries.
Minor changes as of FY 2015
Minor revisions to allow Regional Offices to determine the number of inspections at their discretion and to delete the NEP expiration date.
Minor revisions resulting from the HCS 2012 (Hazard Communication, Final Rule, Federal Register, Vol. 77, No. 58, March 26, 2012). Minor changes to updated references, such as revised OSHA directives, the new OSHA
Information System (OIS), and the North American Industry Classification System (NAICS).
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[TABLE 5-1] | discontinued the required programmed inspection goals, but it will retain the NEP’s inspection procedures, citation guidance, and outreach information for continued reference by | Regional Offices |
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I. Purpose. This Directive describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures in facilities in the Primary Metal Industries, such as iron foundries and establishments that manufacture nails, insulated wires and cables, steel piping, and copper and aluminum products, under Major Group 33 in the Standard Industrial Classification (SIC) Manual, and now under the North American Industry Classification System (NAICS). This NEP will also heighten health and safety awareness within the affected industries of the potential for worker exposure to harmful chemical and physical health hazards so that workers may voluntarily take steps to correct hazards and comply with the applicable safety and health standards.
II. Scope. This Directive applies OSHA-wide.
III. References.
A. OSHA Instruction CPL 02-00-150, April 22, 2011, Field Operations Manual (FOM).
B. OSHA Notice 14-01 (CPL 02), March 6, 2014, Site-Specific Targeting 2014 (SST 14).
C. OSHA Instruction CPL 02-02-038 (CPL 2-2.38D), March 20, 1998, Inspection Procedures for the Hazard Communication Standard.
D. OSHA Instruction CPL 02-00-158, June 26, 2014, Inspection Procedures for the Respiratory Protection Standard.
E. OSHA Instruction CPL 02-00-025 (CPL 2.25I), January 4, 1995, Scheduling System for
Programmed Inspections.
F. OSHA Instruction CPL 03-00-007, January 24, 2008, National Emphasis Program – Crystalline Silica.
G. OSHA Instruction CPL 03-00-009, August 14, 2008, National Emphasis Program - Lead.
H. Federal Register, Vol. 77, No. 58, pages 17574-17896, March 26, 2012, Hazard Communication, Final Rule. [HCS 2012]
IV. Cancellations. None.
V. Expiration. There is no expiration date.
VI. Significant Changes. This is a new program. From May 19, 2011, until September 30, 2014, there was a three-year NEP with required inspection goals. As of October 1, 2014, this Directive will discontinue the required programmed inspection goals, but it will retain the NEP’s inspection procedures, citation guidance, and outreach information for continued reference.
Minor changes, as of fiscal year (FY) 2015, include
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A. Minor revisions to allow Regional Offices to determine the number of inspections at their discretion and to delete the NEP expiration date.
B. Minor revisions resulting from the HCS 2012 (Hazard Communication, Final Rule, Federal Register, Vol. 77, No. 58, March 26, 2012).
C. Minor changes to updated references, such as revised OSHA directives, the new OSHA Information System (OIS), and the NAICS.
VII. Application. This Directive applies to all primary metal manufacturing facilities under the SIC/NAICS codes listed in Appendix B.
VIII. Background.
D. The Primary Metal Industries are a group of establishments engaged in the smelting and refining of both ferrous and nonferrous metals. These metals are refined from ore, pig and scrap, during rolling, drawing, casting and alloying metal operations. Some of the products they manufacture include nails, spikes, insulated wires and cables, steel piping, sheets and bars, copper and aluminum products, and coke.
The Primary Metal Industries were identified as a concern during a review of data from the Bureau of Labor Statistics’ Census of Fatal Occupational Injuries. The BLS report also showed that five of the top 20 industries with non-fatal occupational injury and illness cases were within these SIC/NAICS codes. The Department of Health information from one state regarding elevated blood lead levels also indicated that the
Primary Metal Industries accounted for 26% of the establishments having at least one worker with blood lead levels of 30 µg/100g of whole blood or greater in 2005.
OSHA inspection history indicates that individuals employed in the Primary Metal Industries (smelting and refining of ferrous and nonferrous metals) are exposed to serious safety and health hazards on a daily basis including chemical exposures as well as physical stressors such as noise and heat. Chemical exposures found in these facilities include carbon monoxide, lead, silica, metal dusts and fumes, and various other chemical substances. A more extensive list is provided in Appendix A.
This Directive describes a program change which establishes a new National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures in the primary metal manufacturing facilities under Major Group 33 in the Standard Industrial Classification (SIC) Manual and now under the NAICS. The NEP targeted industries comprise sixteen (16) different SICs in the 33XX metals manufacturing sector, corresponding to 17 different NAICS codes in the 331XXX sector, plus 324199 (coke ovens), as listed in Appendix B.
Because the seriousness and prevalence of this problem is nationwide, States must participate in this national emphasis effort. The Office of Statistical Analysis will provide each State a list of establishments as set out in paragraph X.A.2, upon request.
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IX. National Emphasis Program Goals.
A. To minimize and/or eliminate worker exposure to the hazards, both physical and chemical, which are known to be present in the primary metal industries. Reduction and/or elimination of chemical exposures will help to reduce and prevent the occurrence of skin and eye injuries as well as occupational lung injury and other illnesses. Reduction of worker exposures to physical hazards will help prevent adverse effects such as hearing loss.
B. To significantly reduce/eliminate worker overexposures to both chemical and physical stressors and, therefore, control the health hazards associated with such exposures.
This goal will be accomplished by a combined effort of inspection targeting, outreach to employers, and compliance assistance.
C. Inspections will be directed to those facilities known to manufacture primary metals and metal products.
D. To ensure abatement and measure the effectiveness of this NEP, follow-up site visits often will be necessary where overexposures have been documented.
X. Program Procedures.
A. Site Selection.
- Targeting Sources.
a. Inspections conducted under this NEP shall focus on facilities with workers in Major Group 33 of the SIC Manual, and now identified by their corresponding NAICS codes in Appendix B.
b. Headquarters shall develop and distribute an inspection master list of establishments to each Regional Office.
- Master List Generation.
a. Upon request, using the most recently available Dunn and Bradstreet employer list, the Office of Statistical Analysis (OSA) will prepare a list based on a random number table (RNT) (see CPL 02-00-025) of establishments in the SIC/NAICS codes mentioned in Appendix B. Each establishment on the resulting establishment list will be assigned a sequential number, starting at the top of the list with number one.
OSA will then provide to each Area Office a list of establishments in these SIC/NAICS codes within the Area Office's geographical jurisdiction.
b. Whenever an office becomes aware of a previously unknown manufacturing establishment within any of the identified SIC/NAICS codes, the establishment shall be added to the list.
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c. Establishments with fewer than ten employees shall also be included in this NEP.
- Deletions.
a. Based on their familiarity with local industries, Regional offices shall delete from the master list any firms known to be out of business.
b. The Regional Offices shall also delete any establishment that has had an inspection where worker exposures have been evaluated within the previous two (2) years, provided either that no serious violations related to chemical or noise exposures were cited or that serious violations were cited but a follow-up inspection documented effective abatement of the cited conditions.
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When performing programmed inspections under this NEP, each Regional Office shall conduct inspections from the list of establishments in the SICs/NAICS codes contained in Appendix B. Inspections shall be scheduled in the order called for by the random number table.
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The establishment list generated under this NEP shall be maintained in the Regional Offices for a period of three years.
B. Complaints and Referrals.
Complaint or referral inspections alleging worker exposure to any other hazards at facilities in these SICs/NAICS codes may be expanded to address the issues covered under this NEP. For further guidance, CSHOs should refer to the VOSH Field Operations Manual (FOM).
C. Programmed Inspections.
As of October 1, 2014, this Directive will discontinue the required programmed inspection goals, but it will retain the NEP’s inspection procedures, citation guidance, and outreach information for continued reference.
Some establishments may be selected for inspection under the current SST plan or also under one or more other OSHA enforcement initiatives (National Emphasis (NEP) or Local Emphasis (LEP) Programs). This NEP, which is based on exposure hazards in the Primary Metal Industries, shall be run concurrently with the SST plans.
Whenever an establishment is scheduled for inspection on the current cycles of both the NEP plan and the current SST program plan, the inspections may be scheduled at the same time. CSHOs shall use all IMIS/OIS codes applicable for the inspection. The employer’s DUNS number shall also be recorded for each inspection.
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In cases where an establishment has been scheduled for inspection under both the SST Plan and this NEP, an inspection limited in scope to the health issues targeted by the NEP shall be conducted even if all CSHO-calculated Days Away, Restricted, or Transferred (DART) rates for the establishment are found to be below the current SST Plan inspection thresholds. Other NEPs and/or LEPs may also run concurrently with this NEP.
D. Expanding Scope of Inspection.
Inspections under this NEP shall normally be limited to evaluating worker exposure to physical and chemical hazards described in this Instruction. However, a CSHO may expand the scope of the inspection if other safety and health hazards or violations are observed and/or brought to their attention. The CSHO shall follow the guidelines in the VOSH FOM when expanding the scope of any inspection.
XI. Outreach.
E. Each Area Office/Region is encouraged to develop outreach programs that will support their enforcement efforts. Suggested outreach activities are as follows:
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Letters, news releases by local and national news organizations, and trade magazines can assist with disseminating information about this NEP.
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Local hospitals, occupational health clinics, and local occupational physicians should be alerted via mail about occupational exposure to lead, silica and other
hazards associated with them, if they have not been contacted previously.
- Federal Compliance Assistance Specialists (CAS) should conduct outreach activities such as seminars/informational sessions for the health care sector and employer groups, as well as worker groups (this would include national and local unions).
OSHA’s compliance assistance resources for this industry include
a. Respiratory Protection eTool and Safety and Health Topics Page
b. Personal Protective Equipment Safety and Health Topics Page
c. Noise and Hearing Conservation eTool and Safety and Health Topics Page
d. Heat Stress Safety and Health Topics Page
e. Silica eTool and Safety and Health Topics Page
f. Hazard Communication Safety and Health Topics page
g. Secondary Lead Smelter eTool
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h. Lead Safety and Health Topics Page
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Federal regional offices should attempt to establish Partnerships and Alliances with groups representing employers and workers in the Primary Metal Industries to share successes and technical information concerning effective means of controlling and reducing worker exposures.
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Small businesses should contact VOSH’s On-Site Consultation Program.
VOSH’s On-Site Consultation Service offers free and confidential advice to small and medium-sized businesses in all States across the country, with priority given to high-hazard worksites. On-site Consultation services are separate from enforcement and do not result in penalties or citations. Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with VOSH standards, and assist in establishing safety and health management systems. Additional information about the On-Site Consultation Program can be found on the web at www.osha.gov/dscp/smallbusiness/consult.html.
XII. Inspection Procedures.
This section outlines procedures for conducting inspections and preparing citations for hazards related to worker exposures. For further guidance, CSHOs should consult the VOSH directives, appendices, and other references provided below.
A. Opening Conference.
- During the opening conference, the CSHO shall initially confirm that the employer falls under the SIC/NAICS classification of a primary metal industry.
If the SIC/NAICS code of the establishment is not included in Appendix B, the CSHO will exit the facility (if there is no other reason to inspect the employer) and no inspection shall be conducted under this NEP.
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CSHOs should explain the goals of this NEP to the employer.
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CSHOs should request information on any hazard analyses performed at the facility for the following:
a. Section 1910.132(d) Hazard assessment and equipment selection: VOSH’s Personal Protective Equipment (PPE) standards require employers to assess their workplaces to determine if hazards are present, or are likely to be present, that necessitate the use of PPE (§1910.132). If such hazards are present or are likely to be present (as determined by the information from Material Safety Data Sheets (MSDSs) or Safety Data Sheets (SDSs) or observable workplace conditions), employers must ensure that workers use the appropriate PPE to protect their eyes, face, hands and extremities, depending on the nature of the hazard (§§1910.132, .133, .138). The employer is
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responsible for both the quality of the hazard assessment and the adequacy of the PPE selected.
b. Section 1910.134(d) Selection of Respirators: Employers in the primary metal industries with potential respiratory hazards are required to conduct the evaluation required by §1910.134(d)(1)(iii) of the Respiratory Protection standard.
The hazard evaluation requirement is performance-oriented, and a variety of estimation techniques may be used to characterize worker exposures, depending upon the nature of the chemical products, processes, operating environment, and other factors.
Where a substance is used that may pose a respiratory hazard (see MSDSs/SDSs for chemical substance in use), the employer must assess the nature and magnitude of the hazard relative to the conditions of use in its workplace, considering both normal operating conditions and reasonably foreseeable emergencies.
c. Section 1910.1200(d) Hazard classification: VOSH’s Hazard Communication standard requires that employers who choose not to rely on the classification of a hazardous chemical performed by a chemical manufacturer or importer, must conduct their own evaluation to classify the chemical in accord with §1910.1200(d)(2), and consider the available scientific evidence concerning that chemical. Otherwise,
employers can rely on information from the MSDS/SDS.
B. Walkaround and Records Review.
- MSDS/SDS. CSHOs should review the MSDSs/SDSs for chemicals used and/or manufactured at the facility to ensure they are in compliance with the requirements of §1910.1200(g). If any deficiency is found for any chemicals not manufactured at the workplace, referrals should be made to the appropriate Regional Office in whose jurisdiction the manufacturer or upstream supplier is located pursuant to VOSH Program Directive 02-060A or its successor
- Inspection Procedures for the Hazard Communication Standard (09/15/98).
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Injury/Illness Records. CSHOs should review the employer’s injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure to chemical or physical hazards. CSHOs should investigate log entries for any type of respiratory issues, hearing loss, or other evidence of adverse health effects. Skin or eye injuries involving chemicals should also be investigated.
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Medical Access Orders. Based on information obtained from illness/injury records and interviews, CSHOs may need to review additional worker medical information. When accessing worker medical information, CSHOs should
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follow the procedures in 16 VAC 25-60-80 and in §1913.10 and obtain a written medical access order. CSHOs may also consider obtaining specific written consent from a worker pursuant to §1910.1020(e)(2)(ii), and should ensure that the agency or agency worker is listed on the consent form as the designated representative to receive the information.
- Production Process Evaluation. CSHOs should request and review the employer’s production and processing records.
a. Document the types and quantities of chemicals used, what processes are involved, and the frequency of use.
b. Evaluate and document the extent of engineering controls relative to the processes, the work practices implemented, and any protective equipment used during these operations.
Primary means for controlling exposures include local exhaust ventilation to remove contaminants at their source, enclosing production processes or exposure sources, isolation of the processes or exposure sources, substitution of less hazardous materials and general dilution ventilation.
c. Evaluate workers’ respirator usage, if any, and request a copy of the employer’s respiratory protection program.
d. Evaluate personal air and noise monitoring records conducted by the employer.
- Exposure Monitoring. CSHOs shall normally conduct full-shift personal air monitoring and/or short-term personal air monitoring as appropriate. For some chemicals, monitoring to assess short-term exposure limits (STELs), ceiling (C) or OSHA Permissible Exposure Limits (PELs) may be necessary. If the employer has conducted representative sampling in the previous six months, which shows no overexposures for all processes that have a potential for worker exposures, and any changes in the process are not likely to have increased exposures, the CSHO shall do screening sampling of the work operation(s) with the highest potential exposures to determine if additional sampling is necessary. When reviewing the employer’s sampling, ensure that all job functions and the heaviest production shifts have been evaluated.
a. CSHOs shall use the available MSDSs/SDSs, production and process information in determining whether additional monitoring for other chemicals should be performed.
b. Significant concentrations of airborne contaminants may be encountered in many operations in the primary metal industries.
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Processes that should be evaluated include but are not limited to: handling of scrap, the smelting process, the treatment and inoculation of molten metal before pouring, core- and mold-making processes, pouring molten metal, cooling of casts, casting knockout, casting finishing operations, and the clean-out and re-lining of furnaces.
- CSHO Protection.
CSHOs conducting these inspections should have some training or experience in the primary metal industry. CSHOs must don the appropriate PPE before entering any hazardous areas. Hard hat, safety shoes, safety glasses (or goggles), and hearing protection will usually be required when inspecting any of these areas.
CSHOs must remain at least twenty feet from melting and pouring operations.
When inspecting melting and pouring operations, CSHOs should avoid the use of urethane foam earplugs, which may be combustible.
CSHOs shall wear long sleeve cotton shirts and long pants. They should not wear polyester, nylon or other manmade fabrics that can melt or readily ignite.
Fire-resistant clothing is encouraged. In most foundry areas, long sleeve cotton coveralls which have no outside pockets or cuffs should be worn. Pant legs must cover the top of the boot edge.
CSHOs are not anticipated to be handling chemicals in foundries; however, the presence of airborne gases, fumes, and caustics, which may cause dermal irritation require the use of gloves. Leather gloves are mildly chemical resistant and heat tolerant. Where chemical exposures are found to be higher than average, treated leather or Kevlar gloves should be worn. Sleeves must cover the cuff of the glove. CSHOs should not tuck sleeves into the cuffs of the gloves.
When the arm is fully extended, the cuff of the glove and sleeve must not allow bare skin to be exposed.
Impact and chemical-resistant goggles are appropriate for these industries.
Safety glasses with side shields are not recommended in the presence of and potential exposure to caustics, corrosives, dusts and acid. Impact resistance is required since the industry has the potential for flying and falling debris. Where molten ferrous metal operations must be viewed for a significant length of time, #3-#5 green goggles (or #3-#5 safety glasses under goggles) should be worn.
Respiratory protection may also be required in many work areas. A list of potential contaminants is found in Appendix A. When in the vicinity of operations where the presence of silica is known or suspected, CSHOs shall wear a half-mask or full face respirator equipped with N100 cartridge(s). If other respiratory hazards exist, CSHOs shall wear the appropriate combination cartridge.
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CSHOs should discuss the need for further PPE with their Team Leader or Area Director.
C. Citation Guidance.
- OSHA PELs.
Where exposures are in excess of the permissible exposure limits (PELs), ceiling limits (C) or STELs, for substances listed in Tables Z-1, Z-2, or Z-3 of §1910.1000, cite the applicable sections of §1910.1000.
- Engineering and Work Practice Controls.
If an employer has failed to implement administrative, engineering or work practice controls where feasible for reducing exposures to levels below the PEL, the CSHO shall usually cite §1910.1000(e), or the appropriate engineering control section of the substance-specific standard.
- Respirator Standard.
a. If there are respiratory hazards present at the work site and employers have failed to conduct the initial respiratory hazard evaluation, cite §1910.134(d)(1)(iii).
b. Where workers are required to use respirators, but the employer has failed to comply with a requirement in the respirator standard, cite the applicable sections of §1910.134.
Inspection and citation guidance are provided in VOSH Program Directive 02-411A (09/30/14) or its successor, Inspection Procedures for the Respiratory Protection Standard.
- Personal Protective Equipment (PPE) Standards.
Pursuant to §1910.132(d), the employer must conduct a hazard assessment to determine if hazards are likely to be present that necessitate the use of PPE and have a written certification that the assessment was conducted.
Where chemicals having irritant properties are present, PPE is not being used or is inadequate, and workers’ eyes and/or skin are potentially exposed to such chemicals, cite the applicable PPE standard (§§1910.132, .133, .138).
a. Chemical goggles or other appropriate eye protection must be used when there is a potential for splash or vapor exposure to a substance that is likely to cause injury to the eye.
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b. Chemical-resistant gloves, or sleeves or other appropriate protection for exposed skin must be used when handling liquid, paste, or powdered substances that could cause dermal injury. CSHOs should consult the MSDS/SDS for the appropriate type of gloves and/or the glove chart in OSHA PPE Publication 3151-12R, 2003.
c. The employer must also provide training for exposed workers as indicated in §1910.132. This training must include information on when and how to use appropriate PPE.
d. In addition, employers must provide information on the value, limitations and maintenance of this equipment in accordance with §§1910.132 and .134.
- Occupational Noise Standard.
a. At levels at or above an 8-hour time-weighted-average (TWA) of 85 dBA, an effective hearing conservation program must be implemented. The program must be evaluated for completeness and effectiveness of implementation.
b. Where noise levels are above the 90 dBA TWA, hearing protection must be worn by all exposed workers until engineering or administrative controls reduce exposures to below the PEL. Workers who have already experienced a standard threshold shift must wear hearing protection at
levels at or above 85 dBA TWA. Cite the applicable paragraph under §1910.95(i)(2).
c. When hearing protection is required, employers must make a variety of hearing protectors available at no cost to the workers.
- Expanded Health Standards. Compliance with the elements of the expanded health standards shall be evaluated, if exposures are found to chemicals, such as Lead, §1910.1025, or Cadmium, §1910.1027.
D. Other Applicable Requirements.
- Hazard Communication.
a. Workers who may be exposed to chemicals are required to be trained on the hazards of the chemicals in the workplace pursuant to §1910.1200(h)(3).
b. Workers must be informed of the signs and symptoms of any respiratory, skin or eye conditions associated with exposures to hazardous chemicals in the workplace.
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c. Employers must ensure that all MSDSs/SDSs are readily accessible to workers. CSHOs should ensure that all containers are labeled with the appropriate hazard warnings.
Citation Guidance: Detailed inspection and citation guidance, including guidance on how to address inadequate MSDSs/SDSs, is contained in VOSH Program Directive 02-060A, Inspection Procedures for the Hazard Communication Standard (09/15/98) or its successor.
Note: VOSH Program Directive 02-060A will soon be revised because of the Final Rule for Hazard Communication (77 Fed. Reg. 17574-17896, March 26, 2012), i.e., HCS 2012. Until then, CSHOs shall note the employer’s compliance with the effective dates of applicable provisions in the HSC 2012, listed in paragraph 1910.1200(j).
- Housekeeping and Hygiene Practices.
a. Determine whether the employer’s housekeeping and hygiene practices may contribute to overexposure. For example:
Exposed surfaces should be as free as practicable of hazardous dusts, such as lead and chromium (bulk samples of the dust may need to be collected). Contaminated surfaces should not be blown clean with compressed air or other forced air (such as leaf blowers).
If vacuuming is used for cleaning, the exhaust air should be properly filtered to prevent release of contaminants back into the workroom.
There should be separate break areas for consuming food and beverages that are kept free of harmful dusts. Clothes contaminated with hazardous dusts should not be blown or shaken to remove dust.
b. Document poor housekeeping and hygiene practices.
- Access to Employee Exposure and Medical Records.
a. Interview workers to determine whether they were informed of their right to review their medical and exposure records annually and understand their rights regarding the confidentiality of such records. b. Review the employer’s recordkeeping program to ensure that the required information is being collected and reported.
c. Evaluate the employer’s method for ensuring the confidentiality of worker medical records.
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d. When it is necessary to review worker medical records, ensure that they are obtained and remain confidential in accordance with §1913.10 and §1910.1020.
Citation Guidance: If violations are found, CSHOs should cite the applicable section of §1910.1020. These rules do not require the creation of any records, only preservation and access requirements.
Recent revisions to recordkeeping policies and procedures are described in VOSH Program Directive 14-006, Recordkeeping Policies and Procedures Manual (04/15/14) or its successor.
- Heat Stress.
Engineering, administrative and work practice controls should be evaluated in areas where there is a potential for heat stress (e.g., furnaces) and/or when cases of heat stress are recorded on the OSHA 300. Investigation guidelines and other information can be found in the VOSH Program Directive 09-052A, OSHA Technical Manual, Section III, Chapter 4, Heat Stress (01/15/14) or its successor.
E. Follow-up Inspections.
Where citations are issued for overexposures, or abatement documentation provided by the employer for other serious citations is not adequate, follow-up site visits shall be conducted to determine whether the employer is eliminating exposures or reducing exposures below the PEL. Where exposures could not feasibly be reduced below the PEL, engineering and administrative controls must still have been implemented to reduce exposures to the extent feasible, and workers provided with adequate respiratory protection and other appropriate PPE where necessary.
F. Program Evaluation.
This NEP may be evaluated using data collected from case files and follow-up site visit
reports submitted by each Regional Offices to Headquarters. The data will be evaluated to determine the impact of OSHA inspections on the reduction of exposures at each work site.
G. Coordination.
Regional Office. The VOSH Health Compliance Director is required to identify VOSH Regional Health Directors as coordinators for this NEP.
H. IMIS/OIS Coding Instructions. The Directive below is for recording inspections under this NEP. The majority of inspections conducted under this NEP will be “Health” inspections and should be coded as such. When this NEP is conducted in conjunction with an SST inspection, the OSHA-1 Forms shall be marked as “programmed planned” in item 24, and in item 21, Inspection Category shall be recorded as “H”. In addition, the
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“NEP” value of “SSTARG__” shall be recorded in Item 25d along with the NEP code
"PMETALS".
If during an SST inspection (or other safety-related inspections) it is determined the SIC should be one of the 3300 SICs, the NEP code for “PMETALS” shall be recorded.
This new "PMETALS” code applies to the following enforcement forms: OSHA-1, OSHA-7, OSHA-36, OSHA-90 and OSHA-55 (and the corresponding OIS pages/tabs).
Whenever a consultation visit is made in response to this NEP, Consultation request/visit forms are to be completed with the NEP code "PMETALS" in item 25 on Form-20, and in item 28 on Form-30 (and the corresponding OIS pages/tabs).
XIII. Consultation. Regional Offices are encouraged to work with Consultation Services to communicate the goals of this NEP. When appropriate, 21(d) Consultation Projects are encouraged to develop and conduct their own outreach activities to address exposures to physical and chemical hazards.
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Appendix A
Chemical Exposure Hazards Found in Primary Metal Industries
acrolein nitric acid ammonia nitrogen antimony nuisance dust arsenic ozone asbestos phenol benzene polycyclic aromatic hydrocarbons 2-butoxyethanol propane carbon dioxide silica carbon monoxide sulfuric acid chlorine sulfur dioxide chromium tetraethyl lead coal tar pitch volatiles toluene copper fume vanadium dimethylamine wood dust dimethyl ethylamine xylene formaldehyde zinc oxide furfuryl alcohol hydrogen chloride metal dusts including: hydrogen sulfide iron iron oxide aluminum
isocyanates manganese isopropyl alcohol beryllium lead cadmium methane tin methyl alcohol copper methyl formate silver methylene bisphenyl isocyanate nickel molybdenum lead naphthalene
A- 1
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Appendix B
Primary Metal Industries - SIC/NAICS Codes
The Primary Metal Industries (PMI) are a group of establishments engaged in the smelting and refining of both ferrous and nonferrous metals. These metals are refined from ore, pig, and scrap, during rolling, drawing, casting, and alloying metal operations. Some of the products they manufacture include nails, spikes, insulated wires and cables, steel piping, sheets and bars, copper and aluminum products, and coke. These SIC/NAICS codes include:
3312 – Steel Works, Blast Furnaces (including Coke Ovens), and Rolling Mills (NAICS 324199, 331111, 331221) 3313 – Electrometallurgical Products Except Steel (NAICS 331112) 3316 - Cold-Rolled Steel Sheet, Strip and Bars (NAICS 331221) 3317 - Steel Pipe and Tubes (NAICS 331210) 3321 - Gray and Ductile Iron Foundries (NAICS 331511) 3322 – Malleable Iron Foundries (NAICS 331511) 3325 – Steel Foundries, Not Elsewhere Classified (NAICS 331513) 3331 – Primary Smelting and Refining of Copper
(NAICS 331411) 3334 – Primary Production of Aluminum (NAICS 331312) 3339 – Primary Smelting and Refining of Nonferrous Metals, Except Copper and Aluminum (NAICS 331419) 3341 – Secondary Smelting and Refining of Nonferrous Metals (NAICS 331314, 331423, 331492) 3351 – Rolling, Drawing and Extruding of Copper (NAICS 331421) 3354 – Aluminum Extruded Products (NAICS 331316) 3366 – Copper Foundries (NAICS 331525) 3365 – Aluminum Foundries (NAICS 331524) 3369 – Nonferrous Foundries Except Aluminum and Copper
(NAICS 331528)
B- 1
VOSH Enforcement Exemptions and LimitationsDoc ID: 02-003X
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DOLI VOS Virginia Occupational Safety & Health
H
VOSH PROGRAM DIRECTIVE: 02-003X ISSUED: May 29, 2024
Subject VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act, OSHA Instruction CPL 02-00-051 (formerly CPL 2-0.51J); Appendix “A” Revision
Purpose ● This Directive transmits to field personnel the annual exemptions and limitations for VOSH enforcement activity under the federal Appropriations Act. Attached as Appendix “A” is the annual listing of the North American Industrial Classification System (NAICS) codes for industries with a Days Away, Restricted, or Transferred (DART) occupational injury and illness rate below the most recent available national private sector rate from BLS. This rate is 1.7 for 2022.
● This Directive also includes a memorandum which clarifies OSHA’s longstanding position on the limits of its authority to conduct enforcement activities on small farms.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program.
Certification This Program Directive is considered to meet the definition of “guidance document” contained in a §2.2-4101 of the Code of Virginia: “any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.”.
Notwithstanding the issuance date of this Program Directive, and in accordance with §2.2-4002.1.B of the Code of Virginia, this Program Directive has been or will be subject to a 30-day public comment period, to include public comment through the Virginia Regulatory Town Hall website, after publication in the Virginia Register of Regulations and prior to its effective date.
Notwithstanding the issuance date of this Program Directive, and in accordance with §2.2-4002.1.C of the Code of Virginia, if a written comment is received during a public comment period asserting that the guidance document is contrary to state law or regulation, or that the document should not be exempted from the provisions of this chapter, the effective date of the guidance document by the agency shall be delayed for an additional 30-day period. During this additional period, the agency shall respond to any such comments in writing by certified mail to the commenter or by posting the response electronically in a manner consistent with the provisions for publication of comments on regulations provided in this chapter. Any person who remains aggrieved after the effective date of the final guidance document may avail himself of the remedies articulated in Article 5 (§ 2.2-4025 et seq.).
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[TABLE 1-1]
DOLI
V | DOLI V | irginia Occupational Safety & Health | VOS
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Scope This Directive applies to all VOSH personnel.
References OSHA Instr. CPL 02-00-051 (May 28, 1998), Enforcement Exemptions and Limitations under the Appropriations Act;
Policy Clarification on OSHA’s Enforcement Authority at Small Farms (Memo: Thomas Galassi, Director, Directorate of Enforcement Programs (July 29, 2014)); and
Update of Appendix “A” (Memo: Douglas L. Parker, Assistant. Secretary, OSHA (January 16, 2024)
Cancellation VOSH Program Directive 02-003W (July 27,2022)
Action Directors and Managers shall ensure that compliance activities are scheduled and conducted following the guidelines set forth in this Directive.
Effective Date July 31, 2024
Gary G. Pan Commissioner
Distribution: Commissioner of Labor and Industry VOSH Compliance & Cooperative Programs Staffs Assistant Commissioner Legal Support & OIS Staffs VOSH Directors and Managers OSHA Region III & Norfolk Area Offices
Attachments: ● Sample Cardinal FLSA Sheet;
● Policy Clarification on OSHA’s Enforcement Authority at Small Farms Memo (Thomas Galassi, July 29, 2014); and
● Attachments: OSHA Instruction CPL 02-00-051 (28 May 1998); and Revised Appendix “A” (January 16, 2024)
2
[TABLE 2-1] Update of Appendix “A” (Memo: Douglas L. Parker, Assistant. Secretary, OSHA (January 16, 2024)
[/TABLE]
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Table of Contents
Summary .................................................................................................................................................................... 1
Implementation ......................................................................................................................................................... 1
Equivalency Terms ..................................................................................................................................................... 2
Sample CARDINAL FLSA Sheet ............................................................................................................... Attachment A
OSHA Instruction CPL 02-00-051 (formerly CPL 2-0.51J) , Enforcement Exemptions and Limitations under the Appropriations Act ................................................................................................................ Attachment B
Policy Clarification Memorandum on OSHA’s Enforcement Authority at Small Farms ..................... ...Attachment C
Replacement of Appendix A for CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act…………………………………………………………………………………………………………… Attachment D
i
[TABLE 3-1] Replacement of Appendix A for CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act…………………………………………………………………………………………………………… Attachment D
[/TABLE]
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Summary
Each year, Congress passes the federal Appropriations Act or a Continuing Resolution that provides the funding for the operation of federal OSHA. In providing funding for OSHA and the related dependent 23g grant federal funding utilized by VOSH, Congress has placed significant restrictions on enforcement activities regarding two categories of employers: small farming operations and small employers in low-hazard industries.
This funding measure restriction focuses on limiting the inspection of those employers who employ ten or fewer employees. Since these 23g grant funds are passed through from OSHA to the State Program, VOSH is held to the same restrictions and limits imposed on federal OSHA for use of federal funds. However, these annual Appropriations Act limitations do not apply to activities that are funded with 100% state money.
This new Appendix “A” to CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act (January 16, 2024) contains the latest BLS occupational injury and illness rate data at the most precise industrial classification code. OSHA updates the list annually to meet the requirements of federal budget riders prohibiting OSHA from conducting planned safety inspections of small employers in low-hazard industries.
From the effective date of this Directive, this Appendix “A” will be effective for any inspection opened on that date or thereafter, until the next annual revision becomes effective. This Directive includes a revised Appendix “A” for CPL 02-00-051, formerly CPL 2-0.51J, Enforcement Exemptions and Limitations under the federal Appropriations Act, which was forwarded by memorandum dated January 16, 2024.
Implementation
To the extent that this Directive limits or prohibits the use of 50 percent federal matching 23g grant funding for certain VOSH activities normally covered under the grant for compliance efforts, VOSH reserves the right to conduct activities limited or prohibited under the federal Appropriations Act, should it choose to do so, and will pay for those activities with 100 percent 23g grant state matching funds, e.g., VOSH will conduct and pay for, with 100% state funds, fatal accident investigations on farms with 10 or fewer employees and no temporary labor camp activity within the previous 12 months. However, approval to conduct and pay for such 100% state funded activities must be received in advance from the applicable VOSH program director.
Please note that VOSH will issue penalties for any serious, repeat, willful or failure to abate notice that is identified during the inspection of an employer with 10 or fewer employees in a low hazard NAICS. VOSH will also issue penalties for any other-than-serious violation in the same manner as would be done for an inspection not covered by this directive (e.g., employer failure to report a fatal accident with 8 hours). This will necessitate the use of 100% state funds on those inspections as well. In such cases, please contact the applicable Compliance Director and assure that the CSHO follows the time keeping procedures outlined in the directive.
REFERENCE: Va. Code §40.1-49.4.H provides that “serious” violations “shall be assessed a civil penalty for each such violation.” (Emphasis added).
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Compliance officers, who are approved to perform such inspections, shall keep a record of their time spent on such activities. To record the hours in fund 807, input the work hours under correct day of the week.
Go to the right on the timesheet to “ChartFields” and click it.
Then beside “Speed Types”, click “Search”.
Then click the magnifying glass beside “SpeedType Key”. Type in 807. Click Search.
When 807 appears, click the blue highlighted “807”. (That should populate Fund, Program, Department, Cost Center.) Click “Select” at the bottom on the page.That will revert to ChartField Detail page. Click “Ok”
NOTE After following the above procedures, all time entered for that specific row will be identified for the 807 fund. For “Time Reporting Code”, select “REG – Regular Hours”. Your hours will be based off of a 40 hour work week. If you are approved for overtime, you will select “UOS – Uncompensated Overtime” for the “Time Reporting Code”.
Be sure to add any regular work hours to a different row.
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Regional Administrator Assistant Commissioner
Area Director Regional Director VOSH Program Director
Area Office/Regional Office Regional Office
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
Agency Department
OSHA Directives: VOSH Program Directives
OSHA Field Operations Manual (OFOM) VOSH Field Operations Manual (FOM)
OSHA Instruction CPL 2.115 VOSH FOM, Chapter 2.
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Attachment A Virginia Department of Labor and Industry SAMPLE – Individual Timesheet for Cardinal
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Attachment B
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Attachment B
Change effective 02-23-05 - Appendix A Change effective 12-05-05 - Appendix A Change effective 11-20-06 - Appendix A Change effective 12-10-07 - Appendix A Change effective 12-03-08 - Appendix A Change effective 12-18-09 - Appendix A Change effective 01-03-11 - Appendix A Change effective 12-23-11 - Appendix A Change effective 2-22-13 - Appendix A Change effective 05-27-14 - Appendix A Change effective 01/30/2015 - Appendix A Change effective 01/29/2016 - Appendix A Change effective 01/10/2017 - Appendix A Change effective 04/25/2018 - Appendix A Change effective 12/18/2018 - Appendix A Change effective 01/21/2020 - Appendix A Change effective 01/08/2021 - Appendix A Change effective 03/09/2022 - Appendix A Change effective 1/16/2024 – Appendix A
TABLE OF CONTENTS
I. Purpose
II. Scope III. References
IV. Cancellation
V. Action
VI. Federal Program Change VII. Background
VIII. Key Terms IX. General Enforcement Guidlines
Table 1 (Exceptions and Limitations) X. Enforcement Guidance for Small Farming Operations
XI. Enforcement Guidance for Small Employers in low-hazard industries
XII. Late Discovery of Exemption XIII. IMIS Coding
Appendix A
INDEX
[TABLE 9-1] Change effective 02-23-05 - Appendix A Change effective 12-05-05 - Appendix A Change effective 11-20-06 - Appendix A Change effective 12-10-07 - Appendix A Change effective 12-03-08 - Appendix A Change effective 12-18-09 - Appendix A Change effective 01-03-11 - Appendix A Change effective 12-23-11 - Appendix A Change effective 2-22-13 - Appendix A Change effective 05-27-14 - Appendix A Change effective 01/30/2015 - Appendix A Change effective 01/29/2016 - Appendix A Change effective 01/10/2017 - Appendix A Change effective 04/25/2018 - Appendix A Change effective 12/18/2018 - Appendix A Change effective 01/21/2020 - Appendix A Change effective 01/08/2021 - Appendix A Change effective 03/09/2022 - Appendix A Change effective 1/16/2024 – Appendix A
[/TABLE]
[TABLE 9-2]
TABLE OF CONTENTS
[/TABLE]
[TABLE 9-3] Purpose Scope References . Cancellation . Action . Federal Program Change . Background Key Terms General Enforcement Guidlines
[/TABLE]
[TABLE 9-4] Enforcement Guidance for Small Farming Operations Enforcement Guidance for Small Employers in low-hazard industries Late Discovery of Exemption IMIS Coding
[/TABLE]
[TABLE 9-5] Appendix A
INDEX
[/TABLE]
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Attachment B
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Attachment B
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Attachment B
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Attachment B
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Attachment B
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Attachment B
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Attachment C
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Attachment C
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Attachment D Assistant Secretary for Occupational Safety and Health Washington, D.C. 20210 U.S. Department of Labor
January 16, 2024 REGIONAL ADMINISTRATORS
STATE DESIGNEES
MEMORANDUM FOR
FROM: DOUGLAS L. PARKER Assistant Secretary
SUBJECT: Appropriations Act: Replacement of
Appendix A for CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act
Attached is the most recent listing of the North American Industry Classification System (NAICS) codes for industries with a days away, restricted, or transferred (DART) occupational injury and illness rate below the national private sector average rate of 1.7 for 2022.
This new Appendix A to CPL 02-00-051, Enforcement Exemptions and Limitations under
the Appropriations Act, contains the latest BLS occupational injury and illness rate data of the most accurate industrial classification codes. The appendix will be added to the electronic version of CPL 02-00-051 on the OSHA Website and becomes effective on the date of this memorandum for all inspections opened on this date or thereafter.
Compliance safety and health officers (CSHO) must verify if an employer's NAICS code is on the Appendix A list and may not conduct a programmed safety inspection if the employer currently, and at all times during the previous 12 months, has 10 or fewer employees and the DART rate for the employer's primary NAICS is below the national private sector average.
CSHOs must ensure the primary NAICS designation is the most applicable to the employer's operations prior to conducting inspections.
For construction inspections, upon arrival at a worksite to conduct any programmed safety inspection, the compliance officer should determine whether the appropriations rider exempts a particular contractor. Any exempt contractor shall not be inspected. However, CSHOs shall proceed to inspect other non-exempt contractors on the worksite.
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Attachment D
If you have any questions regarding the above, please contact the Office of General Industry and Agricultural Enforcement at (202) 693-1850. In addition, for questions concerning the construction industry, please contact the Directorate of Construction at (202) 693-2020.
Attachment
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Attachment D
Appendix
A
North American Industrial Classification System (NAICS) Codes for Industries with a Days Away, Restricted or Transferred (DART) Rate Less Than the National Average Rate of 1.7 for 2022.
Source: Bureau of Labor Statistic (BLS) data released November 8, 2023.
2017 2017 NAICS Title NAICS Code Agriculture, Forestry, Fishing and Hunting I 111110 Soybean Farming I 111120 I Oilseed (except Soybean) Farming 111130 Dry Pea and Bean Farming I 111140 Wheat Farming I 111150 Corn Farming I 111160 I Rice Farming 111191 Oilseed and Grain Combination Farming I 111199 All Other Grain Farming I 113310 Logging I Mining 211120 I Crude Petroleum Extraction 211130 I Natural Gas Extraction 213111 I Drilling Oil and Gas Wells 213112 Support Activities for Oil and Gas Operations Utilities 221111 Hydroelectric Power Generation 221112 Fossil Fuel Electric Power Generation 221113 Nuclear Electric Power Generation 221114 Solar Electric Power Generation 221115 Wind Electric Power Generation 221116 Geothermal Electric Power Generation 221118 Other Electric Power Generation 221121 Electric Bulk Power Transmission and Control 221122 Electric Power Distribution 221210 Natural Gas Distribution 221310 Water Supply and Irrigation Systems 221320 Sewage Treatment Facilities 221330 Steam and Air-Conditioning Supply
[TABLE 20-1] 2017 2017 NAICS Title NAICS Code Agriculture, Forestry, Fishing and Hunting
[/TABLE]
[TABLE 20-2] I Mining
[/TABLE]
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Attachment D
2017 2017 NAICS Title NAICS Code Construction I 236115 New Single-Family Housing Construction (except For-Sale Builders) 236116 New Multifamily Housing Construction (except For-Sale Builders) 236117 New Housing For-Sale Builders 236118 Residential Remodelers 236210 Industrial Building Construction 236220 Commercial and Institutional Building Construction 237110 Water and Sewer Line and Related Structures Construction 237120 Oil and Gas Pipeline and Related Structures Construction 237130 Power and Communication Line and Related Structures Construction 237210 I Land Subdivision 237310 I Highway, Street, and Bridge Construction I 237990 Other Heavy and Civil Engineering Construction 238140 Masonry Contractors 238150 Glass and Glazing Contractors 238170 Siding Contractors I 238190 Other Foundation, Structure, and Building Exterior Contractors 238210 Electrical Contractors and Other Wiring Installation Contractors 238290 Other Building Equipment Contractors 238330 Flooring Contractors 238340 I Tile and Terrazzo Contractors I 238390 Other Building Finishing Contractors 238910 I Site Preparation Contractors Manufacturing 311221 Wet Corn Milling 311422 Specialty Canning 311920 Coffee and Tea Manufacturing 311930 Flavoring Syrup and Concentrate Manufacturing 312120 I Breweries 312140 Distilleries 313210 Broadwoven Fabric Mills 313310 Textile and Fabric Finishing Mills 313320 Fabric Coating Mills 314994 Rope, Cordage, Twine, Tire Cord, and Tire Fabric Mills 314999 All Other Miscellaneous Textile Product Mills 315110 Hosiery and Sock Mills 315190 Other Apparel Knitting Mills 315210 Cut and Sew Apparel Contractors [TABLE 21-1] 2017 | 2017 NAICS Title NAICS Code | Construction |
[/TABLE]
[TABLE 21-2] 236117 | New Housing For-Sale Builders 236118 | Residential Remodelers 236210 | Industrial Building Construction
[/TABLE]
[TABLE 21-3] 237110 | Water and Sewer Line and Related Structures Construction 237120 | Oil and Gas Pipeline and Related Structures Construction 237130 | Power and Communication Line and Related Structures Construction
[/TABLE]
[TABLE 21-4] 238140 | Masonry Contractors 238150 | Glass and Glazing Contractors 238170 | Siding Contractors
[/TABLE]
[TABLE 21-5] 238210 | Electrical Contractors and Other Wiring Installation Contractors 238290 | Other Building Equipment Contractors 238330 | Flooring Contractors
[/TABLE]
[TABLE 21-6] Manufacturing | 311221 | Wet Corn Milling 311422 | Specialty Canning 311920 | Coffee and Tea Manufacturing
[/TABLE]
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Attachment D
2017 2017 NAICS Title NAICS Code Manufacturing 315280 Other Cut and Sew Apparel Manufacturing 322110 Pulp Mills 322130 Paperboard Mills 322219 Other Paperboard Container Manufacturing 322230 Stationery Product Manufacturing 323111 Commercial Printing (except Screen and Books) 323113 Commercial Screen Printing 323120 Support Activities for Printing 324110 Petroleum Refineries 324122 Asphalt Shingle and Coating Materials Manufacturing 325110 Petrochemical Manufacturing 325120 Industrial Gas Manufacturing 325130 Synthetic Dye and Pigment Manufacturing 325193 Ethyl Alcohol Manufacturing
325194 Cyclic Crude, Intermediate, and Gum and Wood Chemical Manufacturing 325199 All Other Basic Organic Chemical Manufacturing 325211 Plastics Material and Resin Manufacturing 325212 Synthetic Rubber Manufacturing 325311 Nitrogenous Fertilizer Manufacturing 325312 Phosphatic Fertilizer Manufacturing 325314 Fertilizer (Mixing Only) Manufacturing
325320 Pesticide and Other Agricultural Chemical Manufacturing 325412 Pharmaceutical Preparation Manufacturing 325413 In-Vitro Diagnostic Substance Manufacturing 325414 Biological Product (except Diagnostic) Manufacturing 325510 Paint and Coating Manufacturing 325611 Soap and Other Detergent Manufacturing 325620 Toilet Preparation Manufacturing
325910 Printing Ink Manufacturing 325920 Explosives Manufacturing 325991 Custom Compounding of Purchased Resins 325992 Photographic Film, Paper, Plate, and Chemical Manufacturing 325998 All Other Miscellaneous Chemical Product and Preparation Manufacturing 326112 Plastics Packaging Film and Sheet (including Laminated) Manufacturing
326160 Plastics Bottle Manufacturing 326212 Tire Retreading 327332 Concrete Pipe Manufacturing 327410 Lime Manufacturing
[TABLE 22-1] 2017 | 2017 NAICS Title NAICS Code | | Manufacturing
[/TABLE]
[TABLE 22-2] 322110 | Pulp Mills 322130 | Paperboard Mills 322219 | Other Paperboard Container Manufacturing 322230 | Stationery Product Manufacturing
[/TABLE]
[TABLE 22-3] 325199 | All Other Basic Organic Chemical Manufacturing 325211 | Plastics Material and Resin Manufacturing 325212 | Synthetic Rubber Manufacturing
[/TABLE]
[TABLE 22-4] 325412 | Pharmaceutical Preparation Manufacturing 325413 | In-Vitro Diagnostic Substance Manufacturing 325414 | Biological Product (except Diagnostic) Manufacturing 325510 | Paint and Coating Manufacturing
[/TABLE]
[TABLE 22-5] 325920 | Explosives Manufacturing 325991 | Custom Compounding of Purchased Resins 325992 | Photographic Film, Paper, Plate, and Chemical Manufacturing
[/TABLE]
[TABLE 22-6] 326160 | Plastics Bottle Manufacturing 326212 | Tire Retreading 327332 | Concrete Pipe Manufacturing
[/TABLE]
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Attachment D
2017 2017 NAICS Title NAICS Code Manufacturing 327420 Gypsum Product Manufacturing 327991 Cut Stone and Stone Product Manufacturing 327992 Ground or Treated Mineral and Earth Manufacturing 327993 Mineral Wool Manufacturing 327999 All Other Miscellaneous Nonmetallic Mineral Product Manufacturing 331110 Iron and Steel Mills and Ferroalloy Manufacturing 331315 Aluminum Sheet, Plate, and Foil Manufacturing 332215 Metall Kitchen Cookware, Utensil, Cutlery, and Flatware (except Precious) I Manufacturing I 332216 Saw Blade and Handtool Manufacturing 332410 Power Boiler and Heat Exchanger Manufacturing 332420 Metal Tank (Heavy Gauge) Manufacturing 332431 Metal Can Manufacturing 332710 Machine Shops 332911 Industrial Valve Manufacturing 332912 Fluid Power Valve and Hose Fitting Manufacturing 332913 Plumbing Fixture Fitting and Trim Manufacturing 332919 Other Metal Valve and Pipe Fitting Manufacturing 332991 Ball and Roller Bearing Manufacturing 332993 Ammunition (except Small Arms) Manufacturing 332994 Small Arms, Ordnance, and Ordnance Accessories Manufacturing 333131 Mining Machinery and Equipment Manufacturing 333132 Oil and Gas Field Machinery and Equipment Manufacturing 333241 Food Product Machinery Manufacturing 333242 Semiconductor Machinery Manufacturing 333243 Sawmill, Woodworking, and Paper Machinery Manufacturing 333244 Printing Machinery and Equipment Manufacturing 333314 Optical Instrument and Lens Manufacturing 333511 Industrial Mold Manufacturing 333514 Special Die and Tool, Die Set, Jig, and Fixture Manufacturing
333515 Cutting Tool and Machine Tool Accessory Manufacturing 333517 Machine Tool Manufacturing 333611 Turbine and Turbine Generator Set Units Manufacturing 333612 Speed Changer, Industrial High-Speed Drive, and Gear Manufacturing 333613 Mechanical Power Transmission Equipment Manufacturing 333618 Other Engine Equipment Manufacturing 333914 Measuring, Dispensing, and Other Pumping Equipment Manufacturing
333921 Elevator and Moving Stairway Manufacturing
[TABLE 23-1] 2017 | 2017 NAICS Title NAICS Code | Manufacturing |
[/TABLE]
[TABLE 23-2] 327991 | Cut Stone and Stone Product Manufacturing 327992 | Ground or Treated Mineral and Earth Manufacturing 327993 | Mineral Wool Manufacturing 327999 | All Other Miscellaneous Nonmetallic Mineral Product Manufacturing
[/TABLE]
[TABLE 23-3] 332710 | Machine Shops 332911 | Industrial Valve Manufacturing 332912 | Fluid Power Valve and Hose Fitting Manufacturing
[/TABLE]
[TABLE 23-4] 332991 | Ball and Roller Bearing Manufacturing 332993 | Ammunition (except Small Arms) Manufacturing 332994 | Small Arms, Ordnance, and Ordnance Accessories Manufacturing
[/TABLE]
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Attachment C
2017 2017 NAICS Title NAICS Code Manufacturing 333991 Power-Driven Handtool Manufacturing 333992 Welding and Soldering Equipment Manufacturing 333993 Packaging Machinery Manufacturing 333994 Industrial Process Furnace and Oven Manufacturing 333996 Fluid Power Pump and Motor Manufacturing 333997 Scale and Balance Manufacturing 333999 All Other Miscellaneous General Purpose Machinery Manufacturing 334210 Telephone Apparatus Manufacturing 334220 Radio and Television Broadcasting and Wireless Communications Equipment I Manufacturing I 334290 Other Communications Equipment Manufacturing 334412 Bare Printed Circuit Board Manufacturing 334413 Semiconductor and Related Device Manufacturing 334417 Electronic Connector Manufacturing 334418 Printed Circuit Assembly (Electronic Assembly) Manufacturing 334419 Other Electronic Component Manufacturing 334510 Electromedical and Electrotherapeutic Apparatus Manufacturing 334511 Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing 334512 Automatic Environmental Control Manufacturing for Residential, Commercial, and Appliance Use 334513 Instruments and Related Products Manufacturing for Measuring, Displaying, and I Controlling Industrial Process Variables I 334514 Totalizing Fluid Meter and Counting Device Manufacturing 334515 Instrument Manufacturing for Measuring and Testing Electricity and Electrical I Signals I 334516 Analytical Laboratory Instrument Manufacturing 334517 Irradiation Apparatus Manufacturing 334519 Other Measuring and Controlling Device Manufacturing 335110 Electric Lamp Bulb and Part Manufacturing 335121 Residential Electric Lighting Fixture Manufacturing 335122 Commercial, Industrial, and Institutional Electric Lighting Fixture Manufacturing 335129 Other Lighting Equipment Manufacturing 335210 Small Electrical Appliance Manufacturing 335220 Major Household Appliance Manufacturing 335312 Motor and Generator Manufacturing 335313 Switchgear and Switchboard Apparatus Manufacturing 335314 Relay and Industrial Control Manufacturing 335921 Fiber Optic Cable Manufacturing
[TABLE 24-1] 2017 | | | 2017 NAICS Title NAICS Code | | | Manufacturing | | |
[/TABLE]
[TABLE 24-2] 333992 | Welding and Soldering Equipment Manufacturing 333993 | Packaging Machinery Manufacturing 333994 | Industrial Process Furnace and Oven Manufacturing 333996 | Fluid Power Pump and Motor Manufacturing
[/TABLE]
[TABLE 24-3] 334417 | Electronic Connector Manufacturing 334418 | Printed Circuit Assembly (Electronic Assembly) Manufacturing 334419 | Other Electronic Component Manufacturing
[/TABLE]
[TABLE 24-4] 335122 | Commercial, Industrial, and Institutional Electric Lighting Fixture Manufacturing 335129 | Other Lighting Equipment Manufacturing 335210 | Small Electrical Appliance Manufacturing
[/TABLE]
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Attachment C
2017 2017 NAICS Title NAICS Code I Manufacturing 335991 I Carbon and Graphite Product Manufacturing 335999 All Other Miscellaneous Electrical Equipment and Component Manufacturing 336320 Motor Vehicle Electrical and Electronic Equipment Manufacturing 336330 Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing 336412 I Aircraft Engine and Engine Parts Manufacturing 336413 I Other Aircraft Parts and Auxiliary Equipment Manufacturing 336414 Guided Missile and Space Vehicle Manufacturing 336415 Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing 336419 Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing 336991 Motorcycle, Bicycle, and Parts Manufacturing 336992 Military Armored Vehicle, Tank, and Tank Component Manufacturing 337122 Nonupholstered Wood Household Furniture Manufacturing 337214 Office Furniture (except Wood) Manufacturing 339112 Surgical and Medical Instrument Manufacturing 339113 Surgical Appliance and Supplies Manufacturing 339115 Ophthalmic Goods Manufacturing
339116 Dental Laboratories 339910 Jewelry and Silverware Manufacturing 339930 Doll, Toy, and Game Manufacturing 339940 Office Supplies (except Paper) Manufacturing 339950 Sign Manufacturing 339991 Gasket, Packing, and Sealing Device Manufacturing 339993 Fastener, Button, Needle, and Pin Manufacturing
339995 Burial Casket Manufacturing 339999 All Other Miscellaneous Manufacturing I Wholesale Trade 423210 I Furniture Merchant Wholesalers 423220 I Home Furnishing Merchant Wholesalers 423410 Photographic Equipment and Supplies Merchant Wholesalers 423420 Office Equipment Merchant Wholesalers
423430 Computer and Computer Peripheral Equipment and Software Merchant Wholesalers 423440 I Other Commercial Equipment Merchant Wholesalers 423450 I Medical, Dental, and Hospital Equipment and Supplies Merchant Wholesalers 423460 Ophthalmic Goods Merchant Wholesalers
[TABLE 25-1] 2017 2017 NAICS Title NAICS Code I Manufacturing
[/TABLE]
[TABLE 25-2] 336320 | Motor Vehicle Electrical and Electronic Equipment Manufacturing 336330 | Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing 336412 | I Aircraft Engine and Engine Parts Manufacturing
[/TABLE]
[TABLE 25-3] 336415 | Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing 336419 | Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing
[/TABLE]
[TABLE 25-4] I Wholesale Trade
[/TABLE]
[TABLE 25-5] 423420 | Office Equipment Merchant Wholesalers 423430 | Computer and Computer Peripheral Equipment and Software Merchant Wholesalers 423440 | I Other Commercial Equipment Merchant Wholesalers
[/TABLE]
--- Page 26 ---
Attachment C
2017 2017 NAICS Title NAICS Code I Wholesale Trade 423490 Other Professional Equipment and Supplies Merchant Wholesalers 423610 Electrical Apparatus and Equipment, Wiring Supplies, and Related Equipment I Merchant Wholesalers 423620 Household Appliances, Electric Housewares, and Consumer Electronics Merchant Wholesalers 423690 Other Electronic Parts and Equipment Merchant Wholesalers 423710 Hardware Merchant Wholesalers 423720 Plumbing and Heating Equipment and Supplies (Hydronics) Merchant Wholesalers 423730 Warm Air Heating and Air-Conditioning Equipment and Supplies Merchant I Wholesalers I 423740 Refrigeration Equipment and Supplies Merchant Wholesalers 423810 Construction and Mining (except Oil Well) Machinery and Equipment Merchant I Wholesalers 423820 Farm and Garden Machinery and Equipment Merchant Wholesalers 423830 Industrial Machinery and Equipment Merchant Wholesalers 423840 I Industrial Supplies Merchant Wholesalers 423850 Service Establishment Equipment and Supplies Merchant Wholesalers 423860 Transportation Equipment and Supplies (except Motor Vehicle) Merchant I Wholesalers 423920 I I Toy and Hobby Goods and Supplies Merchant Wholesalers 423940 I Jewelry, Watch, Precious Stone, and Precious Metal Merchant Wholesalers 423990 I Other Miscellaneous Durable Goods Merchant Wholesalers 424210 I Drugs and Druggists' Sundries Merchant Wholesalers 424310 I Piece Goods, Notions, and Other Dry Goods Merchant Wholesalers 424320 I Men's and Boys' Clothing and Furnishings Merchant Wholesalers 424330 I Women's, Children's, and Infants' Clothing and Accessories Merchant Wholesalers 424340 I Footwear Merchant Wholesalers 424710 Petroleum Bulk Stations and Terminals 424720 Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals) 424910 Farm Supplies Merchant Wholesalers 424920 I Book, Periodical, and Newspaper Merchant Wholesalers 424930 I Flower, Nursery Stock, and Florists' Supplies Merchant Wholesalers 424940 I Tobacco and Tobacco Product Merchant Wholesalers 424950 I Paint, Varnish, and Supplies Merchant Wholesalers 424990 Other Miscellaneous Nondurable Goods Merchant Wholesalers I Retail Trade 441110 I New Car Dealers 441120 I Used Car Dealers 441210 Recreational Vehicle Dealers [TABLE 26-1] 2017 2017 NAICS Title NAICS Code I Wholesale Trade
[/TABLE]
[TABLE 26-2] 423620 | Household Appliances, Electric Housewares, and Consumer Electronics Merchant Wholesalers 423690 | Other Electronic Parts and Equipment Merchant Wholesalers 423710 | Hardware Merchant Wholesalers 423720 | Plumbing and Heating Equipment and Supplies (Hydronics) Merchant Wholesalers
[/TABLE]
[TABLE 26-3] 423820 | Farm and Garden Machinery and Equipment Merchant Wholesalers 423830 | Industrial Machinery and Equipment Merchant Wholesalers 423840 | I Industrial Supplies Merchant Wholesalers
[/TABLE]
[TABLE 26-4] 424720 | Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals) 424910 | Farm Supplies Merchant Wholesalers 424920 | I Book, Periodical, and Newspaper Merchant Wholesalers
[/TABLE]
[TABLE 26-5] 424950 I Paint, Varnish, and Supplies Merchant Wholesalers 424990 Other Miscellaneous Nondurable Goods Merchant Wholesalers I Retail Trade
[/TABLE]
--- Page 27 ---
Attachment C
2017 2017 NAICS Title NAICS Code I Retail Trade 441222 Boat Dealers 441228 Motorcycle, ATV, and All Other Motor Vehicle Dealers 442110 Furniture Stores 442210 Floor Covering Stores 443142 I Electronics Stores 444210 I Outdoor Power Equipment Stores 445120 I Convenience Stores 445220 I Fish and Seafood Markets 445291 I Baked Goods Stores 445292 I Confectionery and Nut Stores 445299 I All Other Specialty Food Stores 445310 I Beer, Wine, and Liquor Stores 446110 I Pharmacies and Drug Stores 446120 I Cosmetics, Beauty Supplies, and Perfume Stores
446130 Optical Goods Stores 446191 Food (Health) Supplement Stores 446199 All Other Health and Personal Care Stores 447110 I Gasoline Stations with Convenience Stores 448110 I Men's Clothing Stores 448120 I Women's Clothing Stores 448130 I Children's and Infants' Clothing Stores 448140 Family Clothing Stores 448150 Clothing Accessories Stores 448190 Other Clothing Stores 448210 Shoe Stores 451110 I Sporting Goods Stores 451140 I Musical Instrument and Supplies Stores 451211 I Book Stores 451212 News Dealers and Newsstands 453110 Florists 453210 Office Supplies and Stationery Stores 454110 Electronic Shopping and Mail-Order Houses I Transportation and Warehousing 481211 Nonscheduled Chartered Passenger Air Transportation 481212 Nonscheduled Chartered Freight Air Transportation 481219 Other Nonscheduled Air Transportation 483111 I Deep Sea Freight Transportation 483112 I Deep Sea Passenger Transportation 483113 Coastal and Great Lakes Freight Transportation
[TABLE 27-1] 2017 2017 NAICS Title NAICS Code I Retail Trade
[/TABLE]
[TABLE 27-2] 441228 | Motorcycle, ATV, and All Other Motor Vehicle Dealers 442110 | Furniture Stores 442210 | Floor Covering Stores 443142 | I Electronics Stores
[/TABLE]
[TABLE 27-3] 446191 | Food (Health) Supplement Stores 446199 | All Other Health and Personal Care Stores 447110 | I Gasoline Stations with Convenience Stores
[/TABLE]
[TABLE 27-4] 448150 | Clothing Accessories Stores 448190 | Other Clothing Stores 448210 | Shoe Stores 451110 | I Sporting Goods Stores
[/TABLE]
[TABLE 27-5] 453110 | Florists 453210 | Office Supplies and Stationery Stores 454110 | Electronic Shopping and Mail-Order Houses I Transportation and Warehousing |
[/TABLE]
[TABLE 27-6] 481212 | Nonscheduled Chartered Freight Air Transportation 481219 | Other Nonscheduled Air Transportation 483111 | I Deep Sea Freight Transportation
[/TABLE]
--- Page 28 ---
Attachment C
2017 2017 NAICS Title NAICS Code I Transportation and Warehousing 483114 I Coastal and Great Lakes Passenger Transportation 485310 Taxi Service 485320 Limousine Service 486210 Pipeline Transportation of Natural Gas 486910 I Pipeline Transportation of Refined Petroleum Products 486990 I All Other Pipeline Transportation 487110 I Scenic and Sightseeing Transportation, Land 488490 I Other Support Activities for Road Transportation 488510 Freight Transportation Arrangement Information 511110 Newspaper Publishers 511120 Periodical Publishers 511130 Book Publishers 511140 Directory and Mailing List Publishers 511210 Software Publishers 512110 Motion Picture and Video Production 512120 Motion Picture and Video Distribution 512131 Motion Picture Theaters (except Drive-Ins) 512132 Drive-In Motion Picture Theaters 512191 Teleproduction and Other Postproduction Services 512199 Other Motion Picture and Video Industries 515111 Radio Networks 515112 Radio Stations 515120 Television Broadcasting 517312 Wireless Telecommunications Carriers (except Satellite) 519120 Libraries and Archives Finance and Insurance I 522110 Commercial Banking I 522120 Savings Institutions I 522130 Credit Unions I 522190 Other Depository Credit Intermediation 522210 I Credit Card Issuing I 522220 Sales Financing I 522291 Consumer Lending I 522292 Real Estate Credit 522293 I International Trade Financing I 522294 Secondary Market Financing I 522298 All Other Nondepository Credit Intermediation [TABLE 28-1] 2017 2017 NAICS Title NAICS Code I Transportation and Warehousing
[/TABLE]
[TABLE 28-2] 485320 | Limousine Service 486210 | Pipeline Transportation of Natural Gas 486910 | I Pipeline Transportation of Refined Petroleum Products
[/TABLE]
[TABLE 28-3] Finance and Insurance I 522110 Commercial Banking I 522120 Savings Institutions
[/TABLE]
--- Page 29 ---
Attachment C
2017 2017 NAICS Title NAICS Code Finance and Insurance 522310 Mortgage and Nonmortgage Loan Brokers 522320 Financial Transactions Processing, Reserve, and Clearinghouse Activities 522390 Other Activities Related to Credit Intermediation 523110 Investment Banking and Securities Dealing 523120 I Securities Brokerage 523130 Commodity Contracts Dealing 523140 Commodity Contracts Brokerage 523910 Miscellaneous Intermediation 523920 Portfolio Management 523930 I Investment Advice I 523991 Trust, Fiduciary, and Custody Activities I 523999 Miscellaneous Financial Investment Activities 524113 Direct Life Insurance Carriers 524114 Direct Health and Medical Insurance Carriers 524126 Direct Property and Casualty Insurance Carriers I 524127 Direct Title Insurance Carriers 524128 Other Direct Insurance (except Life, Health, and Medical) Carriers 524130 Reinsurance Carriers 524210 Insurance Agencies and Brokerages I 524291 Claims Adjusting I 524292 Third Party Administration of Insurance and Pension Funds 524298 I All Other Insurance Related Activities Real Estate and Rental and Leasing 531120 Lessors of Nonresidential Buildings (except Miniwarehouses) 531130 Lessors of Miniwarehouses and Self-Storage Units 531190 Lessors of Other Real Estate Property I 531210 Offices of Real Estate Agents and Brokers I 531311 I Residential Property Managers 531312 Nonresidential Property Managers I 531320 Offices of Real Estate Appraisers I 531390 Other Activities Related to Real Estate I 532283 Home Health Equipment Rental 532411 I Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing I 532412 Construction, Mining, and Forestry Machinery and Equipment Rental and Leasing I 532420 Office Machinery and Equipment Rentall and Leasing I 532490 Other Commercial and Industrial Machinery and Equipment Rental and Leasing I Professional, Scientific, and Technical Services 541110 I Offices of Lawyers 541120 Offices of Notaries [TABLE 29-1] 2017 2017 NAICS Title | NAICS Code | Finance and Insurance | 522310 | Mortgage and Nonmortgage Loan Brokers 522320 | Financial Transactions Processing, Reserve, and Clearinghouse Activities 522390 | Other Activities Related to Credit Intermediation 523110 | Investment Banking and Securities Dealing 523120 | I Securities Brokerage
[/TABLE]
[TABLE 29-2] 523140 | Commodity Contracts Brokerage 523910 | Miscellaneous Intermediation 523920 | Portfolio Management
[/TABLE]
[TABLE 29-3] 524113 | Direct Life Insurance Carriers 524114 | Direct Health and Medical Insurance Carriers 524126 | Direct Property and Casualty Insurance Carriers
[/TABLE]
[TABLE 29-4] 524128 | Other Direct Insurance (except Life, Health, and Medical) Carriers 524130 | Reinsurance Carriers 524210 | Insurance Agencies and Brokerages
[/TABLE]
[TABLE 29-5] Real Estate and Rental and Leasing | 531120 | Lessors of Nonresidential Buildings (except Miniwarehouses) 531130 | Lessors of Miniwarehouses and Self-Storage Units 531190 | Lessors of Other Real Estate Property
[/TABLE]
[TABLE 29-6] I Professional, Scientific, and Technical Services
[/TABLE]
--- Page 30 ---
Attachment C
2017 2017 NAICS Title NAICS Code I Professional, Scientific, and Technical Services 541191 Title Abstract and Settlement Offices I 541199 All Other Legal Services I 541211 Offices of Certified Public Accountants I 541219 I Other Accounting Services 541310 Architectural Services I 541320 Landscape Architectural Services I 541330 Engineering Services I 541340 I Drafting Services 541350 Building Inspection Services I 541360 Geophysical Surveying and Mapping Services I 541370 Surveying and Mapping (except Geophysical) Services 541380 Testing Laboratories 541511 Custom Computer Programming Services 541512 Computer Systems Design Services I 541513 Computer Facilities Management Services 541519 Other Computer Related Services 541611 Administrative Management and General Management Consulting Services 541612 Human Resources Consulting Services 541613 Marketing Consulting Services 541614 Process, Physical Distribution, and Logistics Consulting Services 541618 Other Management Consulting Services 541620 EnvironmentalConsulting Services 541690 Other Scientific and Technical Consulting Services 541713 Research and Development in Nanotechnology 541714 Research and Development in Biotechnology (except Nanobiotechnology) 541715 Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology) 541720 Research and Development in the Social Sciences and Humanities 541810 Advertising Agencies 541820 Public Relations Agencies 541830 Media Buying Agencies 541840 Media Representatives 541850 Outdoor Advertising 541860 Direct Mail Advertising 541870 Advertising Material Distribution Services 541890 Other Services Related to Advertising 541990 All Other Professional, Scientific, and Technical Services [TABLE 30-1] 2017 2017 NAICS Title NAICS Code I Professional, Scientific, and Technical Services 541191 Title Abstract and Settlement Offices I 541199 All Other Legal Services
[/TABLE]
[TABLE 30-2] 541380 | Testing Laboratories 541511 | Custom Computer Programming Services 541512 | Computer Systems Design Services
[/TABLE]
[TABLE 30-3] 541519 | Other Computer Related Services 541611 | Administrative Management and General Management Consulting Services 541612 | Human Resources Consulting Services
[/TABLE]
--- Page 31 ---
Attachment C
2017 2017 NAICS Title NAICS Code Management of Companies and Enterprises AdminiIs trative and Support and Waste Management and Remediation Services 561110 Office Administrative Services 561311 Employment Placement Agencies
561312 Executive Search Services 561320 I Temporary Help Services 561330 Professional Employer Organizations 561421 Telephone Answering Services 561422 Telemarketing Bureaus and Other Contact Centers 561440 I Collection Agencies I 561510 Travel Agencies I 561520 Tour Operators 561591 Convention and Visitors Bureaus 561599 All Other Travel Arrangement and Reservation Services 561611 Investigation Services I 561612 Security Guards and Patrol Services 561613 Armored Car Services 561621 Security Systems Services (except Locksmiths) 561622 Locksmiths I 561720 Janitorial Services I 561740 Carpet and Upholstery Cleaning Services 561910 I Packaging and Labeling Services I 561920 Convention and Trade Show Organizers I 561990 All Other Support Services 562910 Remediation Services Educational Services I 611110 Elementary and Secondary Schools I 611210 Junior Colleges I 611310 Colleges, Universities, and Professional Schools I 611620 I Sports and Recreation Instruction 611710 Educational Support Services Health Care and Social Assistance I 621111 Offices of Physicians (except Mental Health Specialists) I 621112 Offices of Physicians, Mental Health Specialists I 621210 Offices of Dentists I 621310 Offices of Chiropractors I 621320 I Offices of Optometrists 621330 Offices of Mental Health Practitioners (except Physicians) I 621340 Offices of Physical, Occupational and Speech Therapists, and Audiologists [TABLE 31-1] 2017 2017 NAICS Title | NAICS Code | Management of Companies and Enterprises | AdminiIs trative and Support and Waste Management and Remediation Services | 561110 Office Administrative Services | 561311 Employment Placement Agencies | 561312 | Executive Search Services 561320 | I Temporary Help Services
[/TABLE]
[TABLE 31-2] 561421 | Telephone Answering Services 561422 | Telemarketing Bureaus and Other Contact Centers 561440 | I Collection Agencies
[/TABLE]
[TABLE 31-3] 561599 | All Other Travel Arrangement and Reservation Services 561611 | Investigation Services 561612 | I Security Guards and Patrol Services
[/TABLE]
[TABLE 31-4] 561621 | Security Systems Services (except Locksmiths) 561622 | Locksmiths 561720 | I Janitorial Services
[/TABLE]
[TABLE 31-5]
I 611620 I Sports and Recreation Instruction 611710 Educational Support Services Health Care and Social Assistance
[/TABLE]
--- Page 32 ---
Attachment C
2017 2017 NAICS Title NAICS Code I Health Care and Social Assistance 621391 Offices of Podiatrists I 621399 Offices of All Other Miscellaneous Health Practitioners I 621610 Home Health Care Services I 621991 I Blood and Organ Banks 621999 All Other Miscellaneous Ambulatory Health Care Services I 624120 Services for the Elderly and Persons with Disabilities I 624190 Other Individual and Family Services I 624410 Child Day Care Services Arts, Entertainment and Recreation I 711410 Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures I 713120 Amusement Arcades 713210 Casinos (except Casino Hotels) 713290 Other Gambling Industries 713910 Golf Courses and Country Clubs I 713940 Fitness and Recreational Sports Centers I 713950 I Bowling Centers 713990 All Other Amusement and Recreation Industries Accommodation and Food Services I 721191 I Bed-and-Breakfast Inns 721199 All Other Traveler Accommodation I 721214 Recreational and Vacation Camps (except Campgrounds) I 721310 Rooming and Boarding Houses, Dormitories, and Workers' Camps 722310 Food Service Contractors 722320 Caterers 722330 Mobile Food Services Accommodation and Food Services I 722410 Drinking Places (Alcoholic Beverages) I 722511 Full-Service Restaurants I 722513 Limited-Service Restaurants I 722514 Cafeterias, Grill Buffets, and Buffets I 722515 Snack and Nonalcoholic Beverage Bars Other Services I 811111 General Automotive Repair I 811112 Automotive Exhaust System Repair 811113 I Automotive Transmission Repair I 811118 Other Automotive Mechanical and Electrical Repair and Maintenance I 811121 Automotive Body, Paint, and Interior Repair and Maintenance I 811122 Automotive Glass Replacement Shops [TABLE 32-1] 2017 2017 NAICS Title NAICS Code I Health Care and Social Assistance 621391 Offices of Podiatrists I 621399 Offices of All Other Miscellaneous Health Practitioners
[/TABLE]
[TABLE 32-2] 713210 | Casinos (except Casino Hotels) 713290 | Other Gambling Industries 713910 | Golf Courses and Country Clubs
[/TABLE]
[TABLE 32-3]
I 713950 I Bowling Centers 713990 All Other Amusement and Recreation Industries Accommodation and Food Services
[/TABLE]
[TABLE 32-4] 722310 | Food Service Contractors 722320 | Caterers 722330 | Mobile Food Services Accommodation and Food Services |
[/TABLE]
--- Page 33 ---
Attachment D
2017 2017 NAICS Title NAICS Code Other Services I 811191 Automotive Oil Change and Lubrication Shops 811192 I Car Washes 811198 All Other Automotive Repair and Maintenance 811310 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance 811411 Home and Garden Equipment Repair and Maintenance 811412 Appliance Repair and Maintenance 811420 Reupholstery and Furniture Repair 811430 Footwear and Leather Goods Repair 811490 Other Personal and Household Goods Repair and Maintenance 812111 Barber Shops I 812112 Beauty Salons I 812113 Nail Salons I 812191 Diet and Weight Reducing Centers 812199 I Other Personal Care Services I 812210 Funeral Homes and Funeral Services I 812220 Cemeteries and Crematories 812310 Coin-Operated Laundries and Drycleaners 812320 Drycleaning and Laundry Services (except Coin-Operated) 812921 Photofinishing Laboratories (except One-Hour) I 812922 One-Hour Photofinishing I 812930 Parking Lots and Garages
[TABLE 33-1] 2017 2017 NAICS Title NAICS Code Other Services
[/TABLE]
[TABLE 33-2] 811198 | All Other Automotive Repair and Maintenance 811310 | Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance 811411 | Home and Garden Equipment Repair and Maintenance 811412 | Appliance Repair and Maintenance 811420 | Reupholstery and Furniture Repair 811430 | Footwear and Leather Goods Repair 811490 | Other Personal and Household Goods Repair and Maintenance 812111 | Barber Shops
[/TABLE]
[TABLE 33-3] 812310 | Coin-Operated Laundries and Drycleaners 812320 | Drycleaning and Laundry Services (except Coin-Operated) 812921 | Photofinishing Laboratories (except One-Hour)
[/TABLE]
Guidance on Guardrail Height Variance RequestsDoc ID: Va
--- Page 1 ---
October 3, 1997
Donald L. Struminger, P.E.
President Virginia Linen Service, Inc.
P. O. Box 189 Petersburg, Virginia 23803
Dear Mr. Struminger
This responds to your letter dated May 12, 1997 to Mr. Richard Angell regarding a variance for guardrail heights on ladders in the wash wheel areas of your establishment.
The standard has specific requirements for stair rails in the general industry setting. 1910.23(e)(2) specifies (cid:28) A stair railing shall be of construction similar to a standard railing but the vertical height shall be not more than 34 inches nor less than 30 inches from upper surface of top rail to surface of tread in line with face of riser at forward edge of tread (cid:29) . §1910.23(e)(6) requires at least three inches between the railing and any other object.
The photographs provided for inspection number 125453308 on March 11,1997 indicate sufficient clearance to bring the top rail into the proper height required by the standard and to adjust the mid rails to half the distance between the top rail and the toe of the tread risers.
Based on the information and photographs provided, there seems to be no compelling reason to not bring the railings into compliance with the standard. Therefore, a variance to this requirement is not favorably considered.
--- Page 2 ---
Donald L. Struminger, P.E.
Page 2 April 9, 2003
If I may be of may be of further assistance, please contact me at (804) 786-2391 or Warren Rice of my staff at (8040 786-7984.
Sincerely,
William R. Crawford Director, Safety Compliance
CC: Deputy Commissioner Office of Legal Support Supervisor, Consultation Services
--- Page 3 ---
September 8, 1993
Albert Enders VP Engineering/Corporate C. M. Offray & Son, Inc.
Hagerstown, MD 21740
Dear Mr. Enders
Your letter to Mr. Burge requesting information on photo electric cells was referred to me for reply. You asked if the Square D class 9006, Model TE9RAN photo electric cell is an approved unit.
You also requested a list of approved photo electric cells.
The Virginia Department of Labor and Industry does not approve or disapprove items of equipment. In your case, if the photo electric cell has been tested, certified and labeled by a Nationally Recognized Testing Laboratory it is acceptable by Virginia Occupational Safety and Health Enforcement. Although there are a number of Nationally Recognized Testing Laboratories, Underwriter's Laboratories (UL) does the vast majority of approvals.
There are two methods that can be utilized to determine if an item is approved
-
Look-up the item in the UL publication "Electrical Construction Materials Directory" available in some libraries or from UL.
-
Contact UL at 708-272-8800 and request verification of approval. They should be able to indicate what the equipment is approved for.
I hope this information is helpful. If I can be of further assistance, please contact me at 804-786-2391.
Sincerely,
--- Page 4 ---
William R. Crawford Director Occupational Safety Enforcement Division cc: Assistant Commissioner for Enforcement
--- Page 5 ---
August 10, 1993
W. E. Stader 25 Franklin Road Roanoke, Virginia 24011
Dear Mr. Stader
This is in response to your letter dated July 13, 1993 requesting an interpretation of the standard covering office equipment such as clocks, calculators and typewriters. Your question was; does equipment of this nature used in an office setting have to be double insulated or contain a third wire ground plug?
When the items you referenced are used in an office environment they are considered as "In Residential Occupancies" (Article 250-45 NEC) as defined in the 1993 National Electrical Code (NEC).
Article 250-45(c) lists those items of equipment in a residential occupancy that must be double insulated or have a ground plug (copy attached).
In 1972 Federal OSHA published an interpretation that concluded grounding was not required unless the conditions of Article 250-45(a), (b) or (d) were met. VOSH continues to recognize that interpretation. You may use this letter as your authority since your questions are not specifically addressed in the standards.
I hope this information is helpful. If I can be of any further assistance, please call me.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
CC: Assistant Commissioner for Enforcement Safety Enforcement Region Supervisors
--- Page 6 ---
September 8, 1997
W. E. Stader President Safety Consulting Services, Inc. P. O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This response is to your letter of August 29, 1997 requesting guidance with regard to instructing non-English speaking workers in safe work practices.
This problem has affected many industrial and construction workplaces that must rely on migrant workers and also, in some cases, local persons who can (cid:25)t read or write but are productive employees. The burden of this responsibility is placed on the employer to assure that employees understand the safe work practices in their specific job, are trained in specific requirements, and are able to demonstrate they understand these requirements. The employer may choose to hire an interpreter or this could be accomplished by a competent person assigned by the employer who is
able to communicate the requirements to these workers and understand the feedback that the employees understand the subjects taught. This competent person could be any person including a fellow employee who has demonstrated the ability to communicate in the language and work with these employees in this training.
If I may be of further assistance, please contact me at (804) 785-2391 or Warren Rice of my Staff at (804) 786-7984.
Sincerely,
William R. Crawford Director, Compliance Programs
cc: Region Directors/Compliance Managers File
--- Page 7 ---
June 3, 1997
Patricia H. Falls Chief Executive Officer Firstline Safety Management, Inc.
P. O. Box 3069 Winchester, VA 22604
Subject: Request for Interpretation Concerning Multi-Employer Worksite Policy
Dear Ms. Falls
In response to your letter of May 13, 1997, I have attached an explanation of our multi-employer worksite policy for your information. The specific fact situation you describe concerning a school district that hires a construction manager to oversee its construction projects and also has each contractor report directly to the school district, raises the distinct possibility that the school district could be considered to be functioning in the same manner as a general contractor does on a private sector construction site. If the facts and contract language resulted in such a finding by the Department, the School District could be considered a general contractor and subject to
citations under the multi-employer worksite policy. However, I will stress that such a determination is fact specific, with our main area of interest being the amount of control exercised by the School District and its construction manager over the project.
If you have any questions, please give me a call at 804-786-2391.
Sincerely,
William R. Crawford, Occupational Safety Compliance Director
CC: Tom Pope
--- Page 8 ---
March 24, 1995
Mark Falls Safety Specialist HSN Fulfillment of Virginia, Inc. 115 Brand Road Salem, Virginia 24156
Dear Mr. Falls
This is in response to your letter dated March 3, 1995 requesting information on hearing impaired employees.
I am enclosing a recent Federal OSHA interpretation on OSHA regulations governing the employment of individuals with disabilities. This interpretation, which Virginia enforces, essentially places the decision of where to employ persons with disabilities upon the employer.
If the hearing impaired individual you reference in your letter can operate the material handling equipment safely, there is no objection from VOSH.
Thank you for your concern about safety in the workplace. If you need any additional information, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
Enclosure
--- Page 9 ---
January 14, 1992
Mr. Rick Moneymaker Quality Assurance Manager Brown & Root Braun P.O. Box 400 Waynesboro, Virginia 22980 Dear Mr. Moneymaker:
This is in response to your letter dated January 7, 1992 requesting information pertaining any exemptions from OSHA rules and regulations for the National Electrical Code or National Electrical Safety Code.
Specific articles and sections of the National Electrical Code and the National Electrical Safety Code are referenced in the OSHA AND VOSH General Industry (1910) and Construction (1926) Standards. When a violation of a specifically referenced article or section is noted, it will be cited under that applicable standard.
The National Electrical Code and National Electrical Safety Codes are a consensus of opinions that establish the industry standard. Therefore, any recognized standard pertaining to safety and health of employees is subject to be referenced by the Virginia Labor Law 40.1-51.1a, known as the General Duty Clause, when an unsafe condition is found to exist.
Virginia and Federal Occupational Safety and Health Standards do not exclude or exempt any recognized standard or procedure where employee safety is concerned.
Therefore, all of the National Electrical Code and National Electrical Safety Code as well as all other recognized consensus standards such as ANSI and NFPA are subject to OSHA standards.
I hope this information is helpful. If you have any further questions please do not hesitate to contact me.
Sincerely,
W. F. Dillon, Jr.
Assistant Commissioner for Enforcement
cc: Commissioner of Labor and Industry Director, Safety Enforcement Division
--- Page 10 ---
May 20, 1996
W. E. Stader Safety Consulting Services, Incorporated P.O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This letter is in response to your inquiry of May 2, 1996 regarding the Confined Space Standard in Construction as it relates to the installation of an elevated Bag House and a Cyclone Collector.
Q. (cid:28) Does the installation of an elevated bag house fall under Confined Space Standard when being erected? Usually there is a 2'6" X 3' door at the top and bottom of the bag house and employees are required to work inside during erection. (cid:29)
R. This operation would be considered construction and covered under the Virginia Confined Space Standard for the Construction Industry, Cnsp.146 (See attachment), and
not the §1910.146 General Industry Standard. To be considered a confined space under Cnsp.146 a space must meet the following criteria. A space must not be intended for continuous employee occupancy, and has a limited means of egress and which is also subject to either the accumulation of an actual or potential hazardous atmosphere. The bag house appears to meet the first to items but it would need to have an actual or potential hazardous atmosphere such as welding, chemical use, painting or other construction activities which would create a hazardous atmosphere to be considered a confined space. This would have to be determined by a competent person trained to recognize these hazards at the site.
Q. (cid:28) The Cyclone Collector is fabricated in a shop and contains a tapered opening at the bottom and large opening at the top. The top is not enclosed until all the required tubing is welded in place inside the collector by employees. Should all of the Confined Space standards apply while employees are located inside the collector? (cid:29)
R. Again, this installation is considered construction and covered by the Virginia Confined
--- Page 11 ---
W. E. Stader Page 2 May 20, 1996
space Standard for the Construction Industry, CNSP.146 and must meet the same
criteria as mentioned above. It appears that all areas are met in this installation including a hazardous atmosphere and requirements for safeguarding and rescues must be undertaken when an IDLH atmosphere is present as referenced in Cnsp.146 § 9 on page 13 of the standard.
If I may be of further assistance please do not hesitate to call me at 804/786-7984.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Commissioner Deputy Commissioner VOSH Training and Consultation
--- Page 12 ---
December 12, 1994
W. E. Stader Safety Consulting Services, Inc. P. O. Box 13968 25 Franklin Road Roanoke, Virginia 24038
Dear Mr. Stader
This is in response to your letter dated December 2, 1994 requesting information on how §1926.500 - 1926-503 apply to the modular home manufacturing trade.
Modular homes assembled onsite are covered by the referenced standards. Employers must provide fall protection for their employees when exposed to a fall of six feet or more. The rule applies to all construction activities unless another construction standard specifically requires fall protection, such as for steel erection of buildings and for scaffolds.
The new rule gives employers the flexibility to choose from various options to provide fall protection. For example, during roofing work on low-sloped roofs with unprotected sides
above six feet, guardrails, safety nets, personal fall arrest system, or a combination of a warning line system and these systems, or a warning line and safety monitoring system will be allowed. In some cases, the use of a safety monitoring system alone is permitted.
I hope this information is helpful, if you need any additional information please let me know.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
--- Page 13 ---
February 20, 1997
Frank L Kollman Kollman & Sheehan, P.A.
Sum Life Building 20 South Charles Street Baltimore, Maryland 21301
Dear Mr. Kollman
This is in response to your letter dated February 11, 1997 and our telephone conversation concerning Christmas treeing steel. You requested clarification of Virginia (cid:25)s position on the use of multiple lift rigging of steel in view of the various litigation and other developments concerning Christmas treeing steel since my letter August 20, 1993 to Centex-Simpson Construction Company.
Since the 1993 letter you reference, a draft proposal of Subpart R, Steel Erection, has been developed by the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC) for the U.S. Department of Labor and has been accepted by federal OSHA as a guide until the
final version is published. Federal OSHA (cid:25)s position on Christmas treeing is, if the employer complies with the provisions of the SENRAC proposal no citations will be issued. The Commonwealth of Virginia will honor federal OSHA (cid:25)s interim policy of compliance with the SENRAC proposal. Also, in Virginia the provisions of §1926.550(a)(1) pertaining to compliance with the crane manufacturer (cid:25)s specifications and limitations apply to lifting steel.
Although I am sure your are familiar with the SENRAC proposal, I am including a copy of the portion of SENRAC pertaining to §1926.753 Hoisting and Rigging. If I can be of any further assistance, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director of Safety Compliance cc: Deputy Commissioner Region Directors Office of Legal Support
--- Page 14 ---
June 15, 1993
Mr. Mohammad Ayub Office of Construction & Engineering U. S. Department of Labor - OSHA Francis Perkens Building, Room N3427 200 Constitution Avenue N.W.
Washington, DC 20210
SUBJECT: Request for interpretation of 1926.706(b)
Dear Mr. Ayub
Recently Virginia Occupational Safety and Health inspectors have cited several companies for not having masonry walls over eight feet in height braced. Several of these companies are claiming that they are constructing the walls in accordance with (IAW) their contract. The contracts call for construction meeting the requirements of ACI 530-88. They further state that when constructed IAW ACI 530-88, the walls are "adequately supported" as required by 1926.706(b).
I have enclosed correspondence from two cases and request you review them to determine if they meet the intent of the standard.
In one case a Professional Engineer, Mr. Harry W. Baylor, has certified that bracing of a wall is not required.
To expedite an interpretation, this request is submitted directly to your office and not through the Region office in Philadelphia.
This was coordinated with Mr. John McFee in the Region Technical Support Office. If you have any questions, please call me at (804) 786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
Enclosures: J.D. Hammond, Inc letter Harry W. Baylor, P.E. letter cc: Mr. John McFee, Region III Technical Support
--- Page 15 ---
August 16, 1995
Robert B. Woodward President SEE, inc.
P. O. Box 866 Merrifield, Virginia 22116
Dear Mr.Woodward
Thank you for your recent letter regarding the U. S. Department of Labor (cid:25)s June 30, 1995 suspension of 29 CFR 1926.652 as it relates to house foundation/basement excavations.
Commissioner Bell asked me to respond to your question.
The Virginia Department of Labor and Industry has been using the Federal recommendations relating to the application of the provisions of 29 CFR 1926.652 to house foundations/basement excavations since April of this year. The June 30, 1995 memorandum from Mr. James Stanley, Deputy Assistant Secretary, OSHA has been adopted by Virginia.
As noted in the memorandum, the suspension is not applicable to those excavations which fail
to meet certain conditions or to utility excavations. Virginia companies performing house foundation/basement excavation activities in which the specified conditions are present may operate under this policy.
Again, thank you for writing. If you have any questions or need additional information, please let me know.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: Commissioner Bell
--- Page 16 ---
January 2, 1991
Mr.Gary M. Andrew JDA Enterprises, Inc. 2395 Vassar Drive Boulder, Colorado 80303
Dear Mr. Andrew
Your letter to the Commissioner of Labor and Industry requesting information on Virginia's excavation standards was referred to Safety Enforcement Division for a response.
On November 15, 1989, The Commonwealth of Virginia adopted a substantially identical version of Federal OSHA's Amendment to the Excavations Standard, 29 CFR 1926.650 to .652 published in the Federal Register on October 31, 1989(54 Fed. Reg. 45894).
The Federal version was amended to reference the additional requirements contained in the Virginia Occupational Safety and Health (VOSH) Confined Space Standard for General Industry and the Construction Industry, 1910.146.
The amendments were adopted to assure consistency and uniformity between the requirements for work in excavations (where there is a potential for the accumulation of a hazardous atmosphere) contained in 1926.650 to .652, and the already existing 1910.146 which applies to "open top spaces of more than 4 feet in depth" (where there is a potential for a hazardous atmosphere).
In summary, Virginia has no special requirements for safety equipment before such equipment may be sold in the state nor do the requirements for excavation and trench shoring exceed Federal OSHA's specifications.
--- Page 17 ---
If I can be of any further assistance please do not hesitate to contact me.
Sincerely,
William R. Crawford Director Safety Enforcement Division cc: Commissioner for Labor and Industry Assistant Commissioner for Enforcement
--- Page 18 ---
September 9, 1991
Mr. Riley H. Mayhall, Jr.
M & M Consulting 14130 Old Columbia Pike Burtonsville, MD 20866 Dear Mr. Mayhall:
This is in response to your letter requesting clarification of the requirements of CFR 29, Part 1926.601(b)(11) as it applies to positive latches on controls for end dump trucks.
You specifically wanted to know if the requirements of 1926.601(b)(11) applied to all controls e.g. Power Take Offs (PTO), hoist control valves, and the end gate control? Controls that affect the hoisting or dumping operation of an end dump truck must have a latch or other device that will prevent accidental starting or engagement of the control. Other controls that do not affect the hoisting or dumping operation may not require such devices. An example of this would be a Power Take Off that requires the clutch to be depressed before the PTO control can be engaged.
I hope this information is helpful and if you have additional questions please feel free to contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director Safety Enforcement Division cc: Assistant Commissioner for Enforcement
--- Page 19 ---
July 29, 1991
Mr. Riley H. Mayhall, Jr.
M & M Consulting 14130 Old Columbia Pike Burtonsville, MD 20866 Dear Mr. Mayhall:
This is in response to your letter requesting clarification of the requirements of CFR 29, Part 1926.601 as it applies to end dump trucks.
You specifically requested answers to three questions: (1) Do all end dump trucks operating between jobsites on the public highways have to comply with the subject regulation when they enter an off-highway jobsite? (2) If so, do all of the (b) General requirements apply including (b)(11)? and (3) Examples of what will comply with the (b)(11) term "other device".
The answer to (1) and (2) is Yes. Only vehicles and equipment listed in 1926.602 are not required to meet the provisions of 1926.601 therefore all dump trucks operating on the highway must meet the provisions of the 1926.601 standard. The term "other device" could be one of several methods of safely dumping the load. This could be a ring with a secured chain to be placed over the lever, a hydraulic system that controls the tailgate from the cab of the truck, or an air lock control in the cab called a "Chelsa" system with a cylinder on the rear of the truck bed.
I hope this information is helpful and if you have additional questions please feel free to contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director Safety Enforcement Division
cc: Assistant Commissioner for Enforcement
--- Page 20 ---
February 9, 1993
Stephen H. Davis E & D Supervisor BPS Equipment Rental & Sales 21900 North Washington Highway Glen Allen, Virginia 23060
Dear Mr. Davis
This is in response to your letter dated January 27, 1993 requesting clarification of CFR 1926.552(c)(3) and our phone conversation on February 9, 1993.
CFR 1926.552(c)(3) requires both guys and tie-ins for personnel hoists but if tie-ins are impractical, a series of guys must be used. These guys shall be made of wire rope at least one-half inch in diameter to securely fasten the hoist structure and insure stability. However, 1926.552(a)(1) states that the employer must comply with the manufacturer's specifications and limitations applicable to the operation of all hoists and elevators. If the manufacturer of the personnel hoist does not specify the need for guys in addition to tie-ins, the Virginia Occupational Safety and Health (VOSH) inspectors will not consider the absence of guys to be a violation.
Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determination of a professional engineer competent in the field.
Without manufacturer's specifications stating that guys are not required and without a professional engineer's certification that the structure is safe without guys, VOSH will consider this a violation of the standard.
--- Page 21 ---
Thank you for your interest in workplace safety. If I can be of further assistance please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
c. Safety Enforcement Region Supervisors Office of Consultation Services Office of Program Evaluation and Technical Support
--- Page 22 ---
MEMO FOR RECORD February 9, 1993
In making the interpretation on the use of guys and tie-ins on personnel hoists I contacted John McFee, 3rd Region OSHA office.
We then, by way of a conference call, discussed the subject with Fred Anderson, Construction Engineering Office, Federal OSHA, Washington, DC.
It was determined that it is industry practice to not install guys if the structure is tied-in to the building. That manufacturing technology of these hoists has for the most part eliminated the need for guys. Mr. Anderson said he could not remember seeing a hoist system with guys in the last 15 years.
He and John McFee suggested using the interpretation based on manufacturer's recommendations. This is consistent with other interpretations we have made in the past 2-3 years.
--- Page 23 ---
May 5, 1993
Mr. W.E. Stader Safety Consulting Services, Inc. 25 Franklin Road P.O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This is in response to your phone call on May 5, 1993 requesting clarification of CFR 1926.550(g)(2). I have reviewed the applicable regulations, and looked at interpretations of §1926.550(g) issued by Federal OSHA. A copy of Federal OSHA's position concerning use of cranes to hoist personnel, and an excerpt from the rulemaking record that OSHA published when it adopted the present language in §1926.550(g)(2), is enclosed.
Because the Virginia Occupational Safety and Health (VOSH) Program agrees with the positions stated in both of the attached documents, the only way to use a crane for lifting personnel in a personnel platform is to make a determination that one of the two exceptions listed in (g)(2) applies (i.e. when the alternative means is more hazardous, or it is not possible because of structural design or worksite conditions). As noted in the attached documents, employee safety, rather than practicality or convenience, must be the basis for the use of a crane or derrick to lift personnel.
As for alternative means that might be available to you for use on this jobsite, Federal OSHA has provided the names and phone numbers of two distributors of the JLG Aerial Lifts. JLG apparently markets an aerial lift (model 150 HAX boom lift) which is capable of reaching a height of 150 feet:
Seaboard Rental and Sales 550 Jefferson Davis Highway Richmond, Virginia (804) 275 8663 Valjar, Inc. 1179 Lance Road Norfolk, Virginia 23502
--- Page 24 ---
(804) 466-7600
In addition, Federal OSHA provided the name of a company that markets a personnel platform (ARVA personnel platform) that attaches directly to the boom of some cranes (according to Federal OSHA §1926.550(g) does not apply when there is no load line involved in the lift):
Grove Crane (717) 597-8121
If you have any questions, please give me a call at (804) 786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
cc: W.F. Dillon Region Supervisors
--- Page 25 ---
July 20, 1993
Mr. Curtis H. Childress Loss Control Services St. Paul Fire and Marine Insurance Company P.O. Box 6449 Glen Allen, Virginia 23058-6449
Dear Mr. Childress
This is response to your letter dated June 28, 1993 requesting an interpretation of VOSH Construction Standard 1926.550(a)(9).
Your question pertained to an RT600B rough terrain crane manufactured by the Grove company on which the counterweight is mounted at least eight feet above ground. You specifically asked if the swing radius of this and similar cranes must be barricaded.
The swing radius of the RT600B Grove crane, or any similar crane with the counterweight above the heads of personnel standing on
the ground does not have to be barricaded provided
% Employees are not working on scaffolds or ladders within the swing radius.
% The crane is positioned away from any building or structure so it is not possible for anyone to be hit while working on or in such a structure.
The key to this situation is the accessibility to the rotating parts of the crane. Employees must be kept away from any pinch point or area where they can be struck by the crane.
--- Page 26 ---
I hope this information is helpful and if I can be of any further assistance please call me at (804) 786-2391.
Sincerely,
William R. Crawford Director Safety Enforcement Division
cc: Assistant Commissioner for Enforcement Safety Enforcement Supervisors Supervisor, Consultation Services
--- Page 27 ---
MEMORANDUM
To: R. C. Angell Compliance Manager
From: W. R. Crawford Director, Compliance Programs
Subject: Overhand Bricklaying/Fall Protection
Date: June 11, 1997
This memorandum is in response to Danny Burnett (cid:25)s Memorandum of April 25, 1997, with regards to the application of fall protection while conducting overhand bricklaying. I apologize
for the delay in my response.
Based on the information in the memo provided, this is interpreted to be (cid:28) overhand bricklaying (cid:29)
even though it may not be a load bearing wall. Accordingly § 1926.501(b)(9)(i) & (ii), requires fall protection for employees conducting (cid:28)overhand bricklaying and related work (cid:29) six feet or
more above the lower level or reaching more than 10 inches below the level of the
walking/working surface on which they are working.
If you need further information please do not hesitate to call.
1
--- Page 28 ---
April 15, 1997
W. E. Stader Safety Consulting Services, Inc. P. O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This response is in reference to your letter of March 28, 1997, requesting information about fall protection around skylights.
It is the duty of the exposed employee (cid:25)s employer, not the owner of structure, to provide a work site free from hazards which may cause the employee to be harmed in any way. Outlined in §1926.501, Subpart M, Fall Protection, specifically paragraph b, section 4, subsections i, ii and iii (see attached copy), (cid:28) Each employee on walking/working surfaces shall be protected from falling through holes (including skylights), tripping in or stepping into or through holes (including skylights), and objects falling through holes (including skylights). (cid:29)
How fall protection is provided to employees is the sole responsibility of the employer, and would be subject to citation by VOSH if not adequately provided.
If I may be of further assistance please call me at 804/786-2391.
Sincerely,
William R. Crawford
Director, Safety Compliance
cc: Deputy Commissioner Region Directors File
--- Page 29 ---
July 13, 1992
Mr. David M Slough Vice President, Dolco Aluminum Co., Inc. 7326-B Little River Turnpike Annandale, Virginia 22003
Dear Mr. Slough
Your letter dated 8 June 1992 to Commissioner Amato was referred to me for reply. You requested clarification on the use of 50 foot Pump Jack Scaffold poles.
Pump Jack Scaffolds and their use are governed by 29 CFR 1926.451(y) and more specifically 1926.451(y)(4)(ii) which states, "Poles shall not exceed 30 feet in height." This standard refers to wooden poles and does not consider other materials such as aluminum.
However, on December 30, 1983 Federal OSHA issued an interpretation (copy attached) to the Alum-A-Pole Corporation stating, "if the Aluminum Pole Pump Jack Scaffold is used in accordance with the intent of the applicable OSHA Standard 29 CFR 1910.28(a) and 29 CFR 1926.451(y) but at a 50 foot shoulder working height, an employer will be in compliance with the Occupational Safety and Health Act".
The Commonwealth of Virginia has adopted this Federal Standard as a State Standard and recognizes Federal interpretations pertaining to it. It should be noted however, that jobsite conditions, possible alteration or misapplication of the equipment may result in issuance of citations for violation of the standard. As with Federal OSHA, this does not constitute approval or endorsement of this product by the Commonwealth of Virginia.
I hope this information is helpful and if I can be of any further assistance please contact me.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
Enclosure c. Commissioner of Labor and Industry Assistant Commissioner for Enforcement Safety Enforcement Regional Supervisors
--- Page 30 ---
February 24, 1993 Patricia H. Falls Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Dear Ms. Falls
This is in response to a series of six letters dated February 8, 1993 requesting interpretations of standards. Commissioner Amato requested that I provide you with the requested information.
Your questions concerning CFR 1926.404 (f)(3)(i)(A) and (B) are
Q. "When using portable generators as described in the reference above, are Ground Fault Circuit Interrupters required?"
R. Receptacles on a two-wire, single-phase portable or vehicle-mounted generator rated not more than 5KW, where the circuit conductors of the generator are insulated from the generator frame and all other grounded surfaces, need not be protected with ground-fault circuit interrupters. Reference 1926.404(b)(ii). Q. "If one uses a correct wiring tester in the receptacles of a portable generator, should the tester show that the generator is grounded?"
R. Yes, if the generator has an internal grounding system or a driven ground rod.
Q. "When using portable generators as described in the reference above, does "cord and plug connected equipment" include extension cords used between the power supply and the tool?" R. Yes, flexible cords/cables are a continuation of the cord/cable which is attached/fixed to the equipment being used.
--- Page 31 ---
Other questions you requested information on are
Q. "Can street plates be used as any part of a protective system including behind the sides of or at the face of trenchboxes under the existing excavation standard without a design by a registered professional engineer?"
R. Street plates that are not part of a designed system approved by a registered professional engineer would not be recognized as meeting the excavation standard. Q. Your company instructs clients performing residential roofing work where the pitch is 5/12 or greater that fall protection is required by 1926.500(g)(1) because of the definition of "low pitched roofs". That one or more methods of fall protection required by 1926.500(g)(1) must be met. "Is this interpretation correct"?
R. The definition of a low pitched roof is a roof having a pitch of less than or equal to four in twelve. Therefore a five in twelve or greater pitch is not considered a low pitched roof and the referenced paragraph is not appropriate for this situation. 1926.451(u)(3) would be a more appropriate means of fall protection, although not required because of a height of less than 16 feet. In the scenario you present, 1926.28(a) is the appropriate standard and would be cited when a hazardous condition exists.
VOSH interprets 1926.28(a) to mean that employers are required to ensure that employees wear and use safety belts to protect them from falling when exposed to falls from heights of 10 feet or more or from heights below 10 feet under certain particularly hazardous circumstances such as when employees are working over machinery, moving equipment, or objects posing an impalement hazard.
Your question on providing hand cleaner instead of potable water on jobsites was answered by separate letter dated February 1, 1993 in response to a previous request (copy attached).
I hope this information is of assistance to you. If you require further information on this or other VOSH requirements please contact me.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
--- Page 32 ---
c. Commissioner Assistant Commissioner for Enforcement
--- Page 33 ---
June 3, 1993
Allan B. Kindrick Director of Safety R.E. Lee and Son, Inc. 2811 Hydraulic Road P.O. Box 7226 Charlottesville, Virginia 22906
Dear Mr. Kindrick
This is in response to your letter dated May 19, 1993 expressing concern for new or revised interpretations, directives or standards that affect your operations. You gave an example of acetylene and oxygen compressed gas cylinders, with regulators removed mounted on a standard welding cart, being considered as in storage.
No new interpretations pertaining to cylinders mounted on welding carts have been issued by Federal OSHA since one in December 1991 which attempted to clarify an earlier (1987) interpretation (attached). There has been no change in VOSH enforcement of the standards affecting the use of oxygen and acetylene cylinders.
VOSH will not issue citations for one acetylene and one oxygen cylinder on a cart without regulators and with caps installed unless it is obvious the cylinders have not been used for an extended period. It is permissible to leave the two cylinders mounted together on a cart from one work shift to the next, even if it is over the weekend or holidays.
As for your question about distribution of information, the Department of Labor and Industry periodically conducts public briefings to provide information to employers. These meetings are publicized in advance in newspapers and by way of mailing lists. I have insured that your company is on our mailing list.
I also suggest two other sources of information
a. You may subscribe to OSHA CD-ROM disks which are updated quarterly, from the Superintendent of Documents, U.S.
Government Printing Office, Washington, DC. This provides all standards and interpretations on a compact disk.
--- Page 34 ---
b. Another source providing standards and interpretations on computer disks is: TEXT-Trieve INC. 410 Bellevue Way SE, Suite 03 Bellevue, WA 98004 This company also updates its product periodically based on information it receives under an agreement with Federal
OSHA.
I hope this information is helpful. If you have additional questions or if we can be of further assistance, please contact Mr. W. R. Crawford, Director of Safety Enforcement at (804) 786-2391.
Sincerely,
Carol Amato Commissioner
c. W. F. Dillon, Jr., Assistant Commissioner for Enforcement W. R. Crawford, Director of Safety Enforcement C. C. Letellier, Consultation Services Supervisor
--- Page 35 ---
May 20, 1996
Thomas W. Saufley Safety Director Riddleberger Brothers, Incorporated P.O. Box 27 Mt. Crawford, VA 22841
Dear Mr. Saufley
This letter is in response to your letter of contest and our discussion regarding necessity of point of operation guarding on your ROTO-DIE Bender.
After reviewing the standard and original citation issued by the Department and the letter of March 22, 1996 from ROTO-DIE, Inc., it is clear that as manufactured and used in accordance with manufacturers instructions, point of operation guarding is not needed when only one operator is utilizing this machine. However, when two operators are in the area of point of operation, as in Riddleberger (cid:25)s case noted in the casefile and videotape, separate procedures and safety devices must be utilized according to ANSI B11.3-1982 Section 2.2.2 where it speaks of a single operator and Section 6.7 Press Brake Helper which states, (cid:28) The employer
shall establish and assign responsibilities to the press brake helper, who shall be protected from hazards at the point of operation by safeguarding, as listed in Section 6.1.4. The helper shall have regard for his own safety, which includes keeping his body members out of the point of operation and hazardous area. The helper shall also be responsible for the safety of others affected by his acts. (cid:29)
Review of ANSI B11.3-1982 shows your machine to be considered a hydraulic power press break even if it is referred to by other names by the manufacturer or by motor freight classifications. My review of the case indicates the violations were properly cited and stand
as shown in the settlement agreement dated March 18, 1996. No further action shall be taken at this time. Please submit payment of penalties, as agreed to in the settlement agreement, with a letter withdrawing your contest to this office.
--- Page 36 ---
Thomas W. Saufley Page 2 May 20, 1996
If we can be of any further assistance, please do not hesitate to call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Commissioner Deputy Commissioner VOSH Training and Consultation
--- Page 37 ---
October 1, 1992
Patricia H. Falls Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Subject: CFR 1926.104, .500 and .750
Dear Mrs. Falls
Mr. Dillion requested that I respond to your question concerning the use of wire rope as standard guardrails in Virginia. CFR 1926.106 applies in its entirety to the Commonwealth of Virginia.
There are exceptions to wearing of life preservers as explained in the attached Federal OSHA interpretation. When working on bridges with guardrails, nets, or safety belts and lanyards life jackets or buoyant work vests may not be required. I have also attached an interpretation pertaining to the requirement for skiffs and medical treatment.
If I can be of further assistance please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
--- Page 38 ---
July 25, 1990
Mr. Jeffrey M. Tanenbaum Littler, Mendelson, Fastiff & Tichy Attorneys At Law 650 California Street, 20th Floor San Francisco, CA 94108-2693
RE: Interpretation of Construction Industry Safety Standards Sections 1926.105(a) and 1926.750(b)(1)(ii)
Dear Mr. Tanenbaum: Your letter of June 29, 1990, subject as above, was referred to me for interpretation. The purpose of this letter is to confirm that your interpretation of the standards in question is correct.
Section 1926.105(a) only requires safety nets where the use of other safety devices is impractical. As long as employees are required to wear safety belts or harness and tie off when exposed to a fall hazard they are considered in compliance with the standard.
Section 1926.750(b)(1)(ii) does not apply in your client's situation when constructing an open-bay structure such as a power plant where safety nets would be impractical. However, fall protection must be provided and safety belts and lanyards tied off will meet this requirement. I would like to suggest that your client consider the use of body harness instead of belts.
Although the safety belt will save a life, sometime it causes injuries to the back that disable the employee. The body harness distributes the weight over a larger area of the body and cause far less injury.
--- Page 39 ---
Your client should retain a copy of this letter to provide any Virginia Occupational Safety and Health inspector that may inspect a work site. If I can be of any further assistance please let me know.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
cc: W.F. Dillon
MFR
This interpretation was confirmed with Mr. John McFee, Region III, Technical Support by telephone on July 23,1990. John suggested the comment about the body harness.
--- Page 40 ---
July 25, 1990
Mr. Jeffrey M. Tanenbaum Littler, Mendelson, Fastiff & Tichy Attorneys At Law 650 California Street, 20th Floor San Francisco, CA 94108-2693
RE: Interpretation of Construction Industry Safety Standards S e c t i o n s 1926.105(a) and 1926.750(b)(1)(ii)
Dear Mr. Tanenbaum
Your letter of June 29, 1990, subject as above, was referred to me for interpretation. The purpose of this letter is to confirm that your interpretation of the standards in question is correct.
Section 1926.105(a) only requires safety nets where the use of other safety devices is impractical. As long as employees are required to wear safety belts or harness and tie off when exposed to a fall hazard they are considered in compliance with the standard.
Section 1926.750(b)(1)(ii) does not apply in your client's situation when constructing an open-bay structure such as a power plant where safety nets would
be impractical. However, fall protection must be provided and safety belts and lanyards tied off will meet this requirement. I would like to suggest that your client consider the use of body harness instead of belts. Although the safety belt will save a life, sometime it causes injuries to the back that disable the employee.
The body harness distributes the weight over a larger area of the body and cause far less injury.
--- Page 41 ---
Your client should retain a copy of this letter to provide any Virginia Occupational Safety and Health inspector that may inspect a work site. If I can be of any further assistance please let me know.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
cc: W.F. Dillon
MFR
This interpretation was confirmed with Mr. John McFee, Region III, Technical Support by telephone on July 23,1990. John suggested the comment about the body harness.
--- Page 42 ---
March 29, 1996
W. E. Stader Safety Consulting Services, Inc. 25 Franklin road Roanoke, VA 24011
Dear Mr. Stader
Thank you for your letter of February 6, 1996, requesting information, guidance and clarification
in meeting the requirements of §1926 Subparts M and R. I apologize for the delay in responding to your request.
Q. Under the interpretation of the fall protection standard Subpart M, would placement of the insulation and metal roofing be considered roofing.
R. No, according to the July 10, 1995 memorandum authored by Deputy Assistant Secretary James Stanley “steel erection activities” means the movement and erection of skeleton steel members (structural steel) in or on buildings or nonbuilding structures. This includes initial connecting of steel, employees moving point to point, installing metal floor or roof decking, welding, bolting and other activities.
On December 11, 1995, the Virginia Safety and Health Codes Board adopted an amendment to the fall protection standard (Subpart M of §1926), with an effective date of March 15, 1996.
This amendment clarifies that Subpart M does not apply to any steel erection activities as outlined in the July 10 letter from Deputy Assistant Secretary Stanley. This would include the installations of decking and insulation as other activities because they are being done concurrently during the same operation. Therefore, until the adoption of revised Subpart R, employees in the steel erection industry can continue to comply with fall protection requirements that were already in effect before the issuance of Subpart M. These employees will continue to be protected from fall hazards through the enforcement of existing §1926 standards which were already in effect before the issuance of Subpart M.
Q. If a contractor does not wish to use, safety nets can he use a “Controlled Access Zone”
--- Page 43 ---
(CAZ) as part of his fall protection program, or is this method only allowable for roofing contractors, placing the metal roofing.
A. This seems to be a two part question. If the contractor is conducting roofing work then a CAZ can be used as outlined in the fall protection plan. If the contractor is placing roof decking on structural steel then this would be considered steel erection and safety nets, if the fall would be greater than 25', would be required unless other positive means of fall protection were provided such as ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts were practical as outlined in §1926.105(a) which is in force as outlined in the above answer.
Q. If the contractor does not wish to use safety nets, what other methods of fall protection are allowed under steel erection standards, i.e., safety harness, guardrails, etc.
R. §1926.105(a) provides when workplaces are more than 25' above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical safety nets shall be used. As long as the employer uses some positive (100 percent) fall protection VOSH or OSHA will not issue a citation.
Thank you for your interest ins workplace safety. If I may be of further assistance, please let me
know.
Sincerely,
William R. Crawford Director Occupational Safety Compliance
cc: Deputy Commissioner File
--- Page 44 ---
October 5, 1992
Patricia H. Falls Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Subject: Wire Rope Guardrail Systems
Reference: CFR 1926.104, .500 and .750
Dear Mrs. Falls: This is in response to your question concerning the use of wire rope as standard guardrails in Virginia. The above referenced standards apply to this subject.
CFR 1926.500 does not specifically address the use of wire rope as a material for use in guarding. However, it has been interpreted as being satisfactory as long as it meets the provisions of 1926.500 (f). Normally wire rope guardrail systems are not satisfactory for use as a static line. Guardrail systems must support a force of 200 pounds outwardly and downwardly while static lines must support 5400 pounds (1926.104 (b)). If the guardrail system meets the 5400 pounds dead weight test and all other requirements for wire rope systems, it would be permissible to use is as a static line.
I have attached an interpretation pertaining to the requirements for wire rope guardrail. If we can be of further assistance please contact Mr. Dick Crawford, Director of Safety Enforcement at (804) 786-2391.
Sincerely,
W. F. Dillon, Jr.
Assistant Commissioner for Enforcement C. Director, Safety Enforcement Division
--- Page 46 ---
March 4, 1991
Mr. Mark Singer Richmond Area Association of Municipal Contractors 7814 Carousel Lane, Suite 300 Richmond, Virginia 23294
Dear Mark
As promised, this letter addresses the question of VOSH "hard hat" requirements that came up during my address to your association on February 18, 1991. Some members of the association voiced a belief that VOSH required the Department of Transportation to require contractors to wear head protection, "hard hats," at all times when on the work site. Further, there seems to be a common belief that there is a Consent Decree or other binding documents that require the constant wear of helmets.
There is no Consent Decree or other binding requirement to wear head protection at all times.
There is a Memorandum of Understanding (MOU) between the Department of Labor and Industry and the Department of Transportation (copy attached). This MOU requires VOSH to respond to VDOT's referral of apparent violations of Virginia Occupational Safety and Health Standards when the contractor fails to correct an unsafe condition. This MOU further states that VDOT will include in all its contracts a requirement for the contractor to be in compliance with Federal and Virginia Occupational Safety and Health Standards and 40.1-51.1 of the Code of Virginia.
Additionally, when VOSH does respond to a referral from VDOT or any other agency, contractor, or private citizen our inspectors will determine if a violation of a standard (1926.100(a) in this case) exists. If there is a violation, such as exposure to falling or flying objects, a citation may be issued. If there is no hazard or violation then there will be no citation.
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I hope this information will be helpful to you and your membership. If you have any additional questions on interpretation and enforcement of standards please contact Mr. William R.
Crawford, Director of the Safety Enforcement Division.
Sincerely,
Carol Amato Commissioner Virginia Department of Labor and Industry
cc: C. Wayne Varga, Employee Safety and Health Engineer, Virginia Department of Transportation W.F. Dillon, Jr., Assistant Commissioner for Enforcement W.R. Crawford, Director, Safety Enforcement Division
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February 1, 1993
Patricia H. Falls Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Subject: Amendment to the Construction Industry Standard for Sanitation
Dear Ms. Falls
This is in response to your letter dated January 20, 1993 asking if contractors can provide hand cleaner instead of portable hand washing facilities on construction jobsites.
Hand cleaner alone is not permissible under the Virginia Amendment to 1926.51 which requires the use of soap and water. See 1926.51(c)(1) which identifies the requirement and 1926.51(i) Definitions, which defines "handwashing" facility as one having soap and water. 1926.51(c)(5) exempts mobile crews with transportation available to nearby toilet facilities from the requirement to provide toilet and handwashing facilities.
The subject of using waterless hand cleaner or toweletts was discussed in a public hearing on September 18, 1991. Several people spoke for and against the use of the above items. The Safety and Health Codes Board then approved the amendment without the use of hand cleaners or towelletts.
For your information I have attached a copy of the Virginia Amendment to the Construction Standard. Thank you for your interest in workplace safety. If you require further information on this or any other standard, please contact Mr. W. R. Crawford, Director of Safety Enforcement Division at (804) 786-2391.
Sincerely,
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Carol Amato Commissioner
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July 19, 1991
Mr. Gerald W. Smith Broadway Electric Inc.
Route 1420 Box 306 Broadway, Virginia 22815 Dear Mr. Smith
This is in response to your request for interpretation of Construction Standard 1926.51 and advice on how your company can comply with the requirements.
Construction Standard 1926.51(a)(1) states that "An adequate supply of potable water shall be provided in all places of employment." Only the employer can determine how best to meet the requirements of the standard. In some cases a large container for the work site may be the most appropriate. In other situations where employees go directly from home to a work site an individual container could be the most appropriate method. Especially for those employees that move from site to site during the course of a day. In either case, the containers must meet the requirements of 1926.51(a)(2) and (3) relating to sanitation and marking.
Providing individual water containers to employees will meet the intent and requirement of the standards. However, if you use this method of providing drinking water you must assure that the containers are inspected periodically for sanitation and serviceability. You should develop a policy that covers inspection of the containers for serviceability, sanitation, and the responsibility of the employee regarding the use and maintenance of the container. Containers must be of sufficient size to hold a full day supply of water or provide a means of replenishment.
If I can be of any further assistance please contact (804) 786-2391.
Sincerely,
William R. Crawford Director Safety Enforcement Division
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February 1, 1993
Patricia H. Falls Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080 Subject: Amendment to the Construction Industry Standard for Sanitation
Dear Ms. Falls
This is in response to your letter dated January 20, 1993 asking if contractors can provide hand cleaner instead of portable hand washing facilities on construction jobsites.
Hand cleaner alone is not permissible under the Virginia Amendment to 1926.51 which requires the use of soap and water. See 1926.51(c)(1) which identifies the requirement and 1926.51(i) Definitions, which defines "handwashing" facility as one having soap and water. 1926.51(c)(5) exempts mobile crews with transportation available to nearby toilet facilities from the requirement to provide toilet and handwashing facilities.
The subject of using waterless hand cleaner or toweletts was discussed in a public hearing on September 18, 1991. Several people spoke for and against the use of the above items. The Safety and Health Codes Board then approved the amendment without the use of hand cleaners or towelletts.
For your information I have attached a copy of the Virginia Amendment to the Construction Standard. Thank you for your interest in workplace safety. If you require further information on this or any other standard, please contact Mr. W. R. Crawford, Director of Safety Enforcement Division at (804) 786-2391.
Sincerely,
Carol Amato Commissioner
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July 21, 1997 Sandy Ball Manager, Safety and Health American Red Cross, Greater Richmond Chapter 409 East Main Street P.O. Box 655 Richmond, VA 23205 Dear Ms. Bell: This response is to your letter of April 24, 1997 to Mr. Richard C. Angell, which was forwarded to me for reply, regarding first aid requirements by OSHA. I apologize for the delay in my response.
Several OSHA standards have requirements for first aid. None of the standards require that trained employees need to be retrained in one year for CPR or in three years for first aid. The time limit is based on the training authority, e.g., the American Red Cross, the U. S. Bureau of Mines, Medic First Aid or the equivalent training that can be verified or documented as long as the training contained the minimum elements outlined in Directive CPL 2-2.53 (see attachment).
The construction standard §1926.50(c) states: (cid:28) In the absence of an infirmary, clinic, hospital or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate of first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid. (cid:29) Reasonably accessible has been interpreted to mean a three to four minute response time is required from the onset of the injury until first aid is administered. A person with a valid certificate in first aid training needs to be available if the three to four minute response time cannot be complied with.
The general industry standard §1910.151 states: (cid:28) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available. (cid:29) Near proximity to the workplace has been interpreted to mean a three to four minute response time is required from the onset of the injury until first aid is administered. A person with a valid certificate in first aid training needs to be available if the three to four minute response time cannot be complied with. In nonhazardous environments such as an office or a bank lobby, the time requirement may be up to 15 minutes (see attached interpretation). The confined space standard §1910.146(k)(1)(iv) is the only general industry standard that requires a person with a valid certificate to be available.
If I may be of further assistance, please call me at (804)786-2391.
Sincerely, William R. Crawford Director, Safety Compliance
cc: Deputy Commissioner Region Directors/Compliance Managers Consultation Services Supervisor
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October 10, 1997
David Webb Safety Director Hensel Phelps Construction Company 4515 Daly Drive Chantilly, Virginia 20151-3712
Dear Mr. Webb
This is in response to your telephone request for information concerning fall protection for steel erectors in Virginia. Department of Labor and Industry Program Directive 06-004 issued on December 15, 1996 (attached) covers the enforcement of Virginia standards for fall protection in the construction industry.
Program Directives are instructions to the VOSH compliance staff (and Virginia employers) on how standards will be applied and enforced by the Department of Labor and Industry. In the enforcement of fall protection in the construction industry, Program Directive 04-006 states that §1926.28(a) will be used for falls between 10 and 25 feet and §1926.105(a) will be used
for falls greater than 25 feet. Anytime the Fall Protection Standard does not apply or where other standards may apply but do not provide adequate protection (e.g., the steel erection standard provision for use of temporary floors every 30 feet for interior falls in tiered buildings), case law allows the use of §1926.28(a) in steel erection.
The wording in the second paragraph of section A is sometimes misunderstood, especially the last sentence pertaining to (cid:28) not being enforced as having the force of law (cid:29). The italicized language on the program directive's first page is solely about the directive itself. It says only that the words of the directive are not going to be enforced as law. The language does not apply to the statutes and regulations about which we are giving guidance. Those statutes and regulations have the force of law and are what we will enforce. The purpose of the italicized language is to keep internal guidance documents from having to go through a lengthy adoption process, such as
our standards go through. If internal guidance took as much time and effort to issue as a standard we would put out very few guidance documents. Employers would not have the benefit of knowing how we are going to enforce those standards. It would also severely restrict us in responding to the safety and health concerns of Virginians when a change in how we enforce a
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David Webb Page 2 October 10, 1997
standard could address those concerns.
Our Program Directives are available to anyone by calling (804) 786-8707. The Department attempts to keep employers informed on how we enforce standards, new information from federal OSHA, and changes to the program through public briefings, news letters, and other mailings. You and any of your subcontractors can be placed on our mailing list by calling the above number.
Thank you for your interest in safety and health in the workplace. If I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Deputy Commissioner Region Directors/Compliance Managers Supervisor, Consultation Services Office of Legal Support File
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June 11, 1997
Richard D. Chadick City Safety Officer City of Richmond, VA 900 E. Broad Street Richmond, VA 23219
Dear Mr. Chadick
This response is to your letter of June 2, 1997 to Mr. Richard C. Angell, which was forwarded to me for reply, inquiring about the exemption of wearing hard hats due to religious beliefs.
On June 20, 1994, Federal OSHA issued Directive STD 1-6.5 (see attachment) regarding the exemption for religious reasons from wearing hard hats. This directive outlines procedures to compliance staff members when addressing this issue:
a. There shall be no citations or other enforcement actions against employers for violations of hard hat standards when their employees fail to wear hard hats due to personal religious convictions.
b. Citations may be issued to employers of construction workers, with such convictions, for failure to instruct them about overhead hazards, as required by §1926.21(b)(2), as with employers of construction workers without such convictions.
c. Employers of non-construction workers, with or without such convictions, should also instruct their workers about such hazards.
If I may be of further assistance, please call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Program
cc. Deputy Commissioner Region Directors/Compliance Managers Consultation Services Supervisor
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November 24, 1997
Thomas J. Meighen, CPCU Chairman, MSA Safety Committee D.C. Metropolitan Subcontractors Association 6934-B Little River Turnpike Annandale, Virginia 22003-3221
Dear Mr. Meighen
This is in response to your letter dated November 19, 1997 requesting clarification on the need for personal fall arrest systems (PFAS) when working within the railings of a scissors lift.
Employees working from a scissors lift equipped with guard railings are not required to use PFAS and tie off. Other lift devices, such as boom type lifts, require the use of PFSA because of the spring action of the boom that could eject a person from the device. If the guard rails are removed from the scissors lift, other means of fall protection would have to be provided.
I have attached a 1995 federal OSHA interpretation that also states this policy. Thank you for your interest in the Virginia program. If I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
Attachment
cc: Deputy Commissioner
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January 31, 1995
Kent Hales Distribution General Manager Virginia Gas Distribution Company Rt. 1, Box 23-C Castlewood, Virginia 24224
Dear Mr. Hales
This is in response to your letter dated January 6, 1995 requesting information on any additional requirements OSHA may have on the installation of natural gas coke ovens at Jewell Company.
In addition to the NFPA 54 and AGA certification of burners you refer to in your letter, OSHA has no specific requirements for the installation of this equipment. The employer must meet the requirements for his establishment as set fourth in the Virginia Standards §1910 for general industry. These standards apply to all facets of the operation from machine guarding to hazard communication, as examples. The only time the Virginia Occupational Safety and Health (VOSH) inspectors would check into the installation of the equipment in question would be if an
accident occurred involving the natural gas ovens. As with any equipment we check to determine if it was installed and operated in accordance with the manufacturer (cid:25)s specifications.
Additionally, if the installation of the equipment requires a design engineer to develop drawings and plans for the project, we would check to see that the installation was accomplished as specified by the engineer.
I hope this information is helpful. If I can be of further assistance, please call me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
cc: Deputy Commissioner
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February 8, 1991
Mr. Gerard Preiss 428 Duplin St.
Virginia Beach, Virginia 23452
Dear Mr. Preiss
This letter is in response to your inquiry of February 1, 1991 regarding the use of electrical cable trays as a walkway or scaffold system. You also questioned the practice of walking on cables that may be energized.
You are correct in your belief that these are unsafe work practices. Walking on cable that is not specifically designed for that purpose can damage the internal conductors causing a short circuit and or damage the external insulation exposing live wires. Even though some cable trays may be constructed in such a way that would support the weight of a person, they are not designed as a scaffold or walkway and should not be used as either.
The specific standard that applies to this situation is Virginia Occupational Safety
and Health Standards for General Industry 1910.303(b)(1)(vi) and 1910.303(b)(2) which pertain to the examination, installation, and use of electrical equipment.
Subpart D, Walking-Working Surfaces, (1910.22) may also apply based on the specific situation. If a VOSH inspector observed an employee walking or crawling a cable tray a citation would be issued for violation of one or more of these standards based on the situation. If I can be of any further assistance please contact me.
Sincerely,
William R. Crawford Director
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Safety Enforcement Division
cc: Commissioner of Labor and Industry Assistant Commissioner of Labor and Industry for Enforcement
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April 26, 1993
Mr. Greg W. Richey Program Consultant Galson Corporation 6601 Kirkville Road E. Syracuse, NY 13057
Dear Mr. Richey
This is in response to your letter dated March 17, 1993 requesting information pertaining to peanut hulling machines. Your question was whether the Virginia Occupational Safety and Health regulations covered peanut hulling machines under General Industry or Agriculture Standards. According to the scenario you presented in your letter, that the mills were separate and apart from the farms, the machines would be covered by General Industry Standards.
Only in a case where a farmer used a machine for his own farming activity, such as making feed for animals, would they be covered by Agriculture Standards. Peanut shelling mills are considered to be grain handling facilities and are covered by 1910.272 General Industry Standard.
I hope this information is helpful and if I can be of any further assistance please contact me.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
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February 8, 1995
Billy Carter Rappahannock Electric Cooperative P.O. Box 7388 247 Industrial Court Fredericksburg, Virginia 22404
Dear Mr. Carter
This is in response to your Fax on January 17, 1995 requesting information on VOSH Standard 1910.269(l)(6)(iii). Federal OSHA has indicated there have been numerous requests for more definitive information on the requirements of this specific paragraph of the standard and is expected to issue more guidance in the future. Based on current Federal interpretations, I will answer your specific questions which are:
Q. 1. (cid:28) What is the effective date of OSHA (cid:25)S rule regarding flame retardant clothing?
What is VOSHA (cid:25)S effective date? (cid:29)
R. As a result of a stay of enforcement of certain paragraphs of §1910.269 and the settlement between OSHA and Edison Electric Institute (et al.) following the latter (cid:25)s petition for review, different dates for enforcement were established for certain paragraphs of the standard. Federal OSHA (cid:25)S date of enforcement was January 31, 1995 except for §1910.269(v)(11)(xii) which is February 1, 1996. The effective enforcement date for VOSH was February 1, 1995 except for §1910.269(v)(11)(xii) which is February 1, 1996.
Q. 2. (cid:28) Based on our availability of fault currents being in the 10,000 amp range, should the outer layer of clothing be flame retardant if natural fibers are worn as underlayers? (cid:29)
R. It is not possible to provide an absolute answer to your questions. There are a number of factors, for which we do not have adequate information, that must be considered before a determination is made. Keep in mind that it is the employers responsibility to insure that if an employee is exposed to electric arcs of flames, the clothing worn will not cause an increase in the extent of injury to the employee. Some of the factors that
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Billy Carter Page 2 February 8, 1995
must be considered are
a. precise information concerning the weight, thickness, material type and design of the outerwear,
b. the affect flames or electric arcs will have upon the various components of the outerwear,
c. how the outerwear will be worn, (i.e. will it be fully buttoned at all times, will there be gloves worn over the ends of the sleeves, etc.),
d. precise information concerning the weight, thickness, material type and design of the clothing to be worn next to the skin, and
e. the exact conditions under which the employees may be exposed to electric arcs or flames, (i.e. will employees be standing directly in front of or off to the side of a piece of equipment which could generate flames or electric arcs).
The guidelines employers must use to determine the appropriateness of clothing for employees exposed to flames or electric arcs are whether the clothing is of a sufficient
weight, thickness, material type and design so that if there is exposure to flames or electric arcs, wearing of that clothing will not cause an increase in the extent of any injury that will be sustained by the employee.
OSHA has determined that natural fiber clothing made of material equivalent to 11 ounce cotton fabric is generally acceptable, as long as there are not clothes worn with it which could increase the extent of injury resulting from exposure to flames or electric arcs.
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Billy Carter Page 3 February 8, 1995
Q. 3. (cid:28) Based on fault currents of 10,000 amps, if flame retardant clothing is worn, say as a uniform, does the outer garment need to be flame retardant also, or can the outer garment be a natural fiber? (cid:29)
R. The outer garment may be made from natural fibers if it is of sufficient weight, thickness or design so as to be capable of preventing it or its lining or insulation fill from igniting or in any other way causing an increase in the extent of injury.
Q. 4. (cid:28) Based on fault currents of 10,000 amps, if flame retardant uniform is worn, can the lining of outer garment be any material (polyester, acetate, etc.) as long as the outer
lining is heavy weight cotton? (cid:29)
R. The lining of the outer garment may be made of the prohibited materials if the outer shell is of sufficient weight, thickness or design so as to be capable of preventing the lining from igniting or in any other way causing an increase in the extent of injury. The considerations outlined in the answer to question two apply.
Q. 5. (cid:28) Based on fault currents of 10,000 amps, if flame retardant clothing is worn, can the outer garment be a regular non-fire retardant rain suit? (cid:29)
R. See answer to question two above.
Federal OSHA has determined that clothing made from 100% natural cotton, 11 ounces or more in weight, does not ignite in the presence of a 12 inch long, 3800 ampere electric arc, 12 inches away and lasting 10 cycles at the power line frequency. Your conditions indicate 10,000 amperes which may make 11 ounce cotton unacceptable.
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Billy Carter Page 4 February 8, 1995
I hope this information is helpful. If I can be of further assistance, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
cc: Deputy Commissioner Safety Division Region Supervisors
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May 27, 1994
H. Terry Aylor Risk Management Instructor Association of Electric Cooperatives P.O. Box 2340 4201 Dominion Blvd. Suite 101
Glen Allen, Virginia 23058-2340
Dear Mr. Aylor
This is in response to your letter dated May 17, 1994, (copy attached) requesting information on the new Electric Power Generation, Transportation, and Distribution standard (1910.269). You had several questions, the answers to which are referenced to the question number. First, I need to tell you the Virginia Safety and Health Codes Board did not adopt the standard at its April 25, 1994 meeting. The Board will consider it again at the July meeting. We understand EEI is negotiating with OSHA on various parts of the standard at this time so there may be changes to the standard based on the outcome of these negotiations.
- Apparel Requirement section.
(a): Paragraph (j) applies to work on exposed live parts, or near enough to them to expose the employee to any hazard they present. Only qualified employees may work on or with exposed
energized lines or parts of equipment and only qualified employees may work in an area containing unguarded, uninsulated energized lines or parts of equipment operating at 50 volts or more. Electric lines and equipment shall be considered and treated as energized unless the provisions of paragraph (d) and/or paragraph (m) of this section have been followed. If engineers, supervisors and/or inspectors have reason to be near enough to energized lines or parts to be considered qualified employees they will need the required protective apparel. Otherwise, they and warehouse personnel delivering materials should be guided by the distances in tables R-6 through R-10.
(b): The standard addresses exposed conductive articles and clothing. Hardhats meeting ANSI standards for electrical work will be acceptable. The proper apparel should be worn beneath the body harness device.
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(2) Noncurrent carrying metal parts.
The requirement is that noncurrent-carrying metals parts of equipment or devices must be treated as energized unless the installation is inspected and these parts are determined to be grounded. A qualified employee may determine that the noncurrent-carrying metal parts of equipment or devices are grounded before beginning work
(3) Grounding wire under construction.
(q)(2)(iv) and (q)(2)(iv)(D) sets forth rules protecting workers from the hazard of voltage
induced on lines being installed near (and usually parallel to) other energized lines. These rules, which provide supplemental provisions on grounding, would be in addition to those elsewhere in the standard. In general, when employees may be exposed to the hazard of induced voltage on overhead lines, the lines being installed must be grounded to minimize the voltage and to protect employees handling the lines from electric shock. The standard does not provide guidelines for determining whether or not a hazard exists due to induced voltage. The hazard depends not only on the voltage of the existing line, but also on the length of the line being installed and the distance between the existing line and the new one. A hazard is presumed to exist if the induced voltage is sufficient to pass a current of (1) one milliampere through a 500-ohm resistor. It is up to the employer to ensure that employees are protected against serious injury from any voltages induced on lines being installed and to determine whether the voltages are high enough to warrant the adoption of the additional provisions on grounding spelled out in paragraphs (q)(2)(iv)(A) through (q)(2)(iv)(E). (q)(2)(iv)(D) states that grounds must be installed at each work location and at all open dead-end or catch-off points or the next adjacent structure.
(4) Section (q)(2)(v) (Fall Protection).
Section (q)(2)(v) deals with reel handling equipment, including pulling and tensioning devices. It is assumed that this question was addressing paragraph (g)(2)(v) and is answered accordingly. The answer is no to your question of whether a body belt with a safety strap secured over a bracket, crossarm or other piece of equipment such that the safety strap cannot slide down the pole be consider "other fall protection". In addition a body harness secured by a safety strap would not be considered "other fall protection." These items are components of a personal fall arrest system. A personnel fall arrest system means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. In addition 1910.269(g)(2)(i) states that personal fall arrest equipment shall meet the requirements of Subpart E of Part 1926 and provides requirements that limits the maximum arresting force on an employee to 900 pounds with a body belt and 1800 pounds if using a body harness with the maximum free fall distance limited to (6) feet. 1926.104 requires components of the fall arrest system to have a minimum breaking strength of 5,400 pounds and be secured above the point of operation to an anchorage or structural member capable of supporting minimum dead weight of 5,400 pounds. All safety belt and lanyard hardware, except rivets, shall be capable of withstanding a tensile loading of 4,000 pounds without cracking, breaking, or
taking a permanent deformation.
(5) Live Line Tool Testing?
Live line tool testing is covered under 1910.269(j). The rule provides additional
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requirements for the thorough examination, cleaning, repair, and testing of live-line tools on a periodic basis. The tools would undergo this process on a two-year cycle and any time defects are noted during the daily inspection. A complete examination of the hot stick is required. After the examination, the tool must be cleaned and waxed, or it must be repaired and refinished if necessary. A test would also be required after the tool has been repaired or refinished regardless of its composition. A test would also be required after the examination if the tool is made of wood or hollow fiberglass-reinforced plastic(FRP). A test would also be required after the examination if the tool is solid fiberglass-reinforced plastic or foam-filled fiberglass-reinforced plastic tube unless the employer can demonstrate that the examination has revealed all defects that could cause the tool to fail during use. The test method used must be designed to verify the
tool's integrity along its full length and, if made of FRP, its integrity under wet conditions. The test voltages are 75 kV/ft for FRP and 50 kV/ft for wood, and the voltage must be applied for a minimum of (1) one minute. Other equivalent tests are permitted. IEEE standard 978-1984 is a guide to the inspection, care, and testing of live-line tools.
(6) What kind of clothing is acceptable in this statute?
Included in the standard is a note indicating the types of clothing fabrics that the record demonstrated are hazardous to wear by employees exposed to electric arcs. Natural fabrics, such as 100 percent cotton or wool, and synthetic materials that are flame resistant or flame retardant are acceptable under the rule.
I hope these answers give you the information you requested. If I can be of any further assistance, please do not hesitate to contact me.
Sincerely,
W. F. Dillon, Jr.
Assistant Commissioner for Enforcement
CC: Director, Safety Enforcement Division Director, VOSH Training
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December 20, 1994
Edward H. Cullop, Jr. 335 Willow Lawn Drive Culpeper, Virginia 22701
Dear Mr. Cullop
This is in response to your letter dated December 8, 1994 requesting information on requirements for apparel covered by §1910.269. You specifically asked:
(cid:28) I need assistance in interpreting whether or not cotton or all natural fabrics are acceptable or if treated, flame retardant materials are required.
The only fabrics specifically prohibited are: acetate, nylon, polyester and rayon unless the employer can demonstrate that they have been treated to withstand the conditions that may be encountered (§1910.269(l)(6)(iii)). Without treatment these fabrics are prohibited as an outer garment. However, if the outer shell is made of a natural fiber that is of sufficient weight,
thickness or design to be capable of preventing the lining or enclosed insulation from igniting or in any way causing an increase in the extent of injury, use of these fabrics is permissible.
Thank you for your interest in safety in the work place. If you need additional information please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
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May 27, 1994
H. Terry Aylor Risk Management Instructor Association of Electric Cooperatives P.O. Box 2340 4201 Dominion Blvd. Suite 101
Glen Allen, Virginia 23058-2340
Dear Mr. Aylor
This is in response to your letter dated May 17, 1994, (copy attached) requesting information on the new Electric Power Generation, Transportation, and Distribution standard (1910.269). You had several questions, the answers to which are referenced to the question number. First, I need to tell you the Virginia Safety and Health Codes Board did not adopt the standard at its April 25, 1994 meeting. The Board will consider it again at the July meeting. We understand EEI is negotiating with OSHA on various parts of the standard at this time so there may be changes to the standard based on the outcome of these negotiations.
- Apparel Requirement section.
(a): Paragraph (j) applies to work on exposed live parts, or near enough to them to expose the employee to any hazard they present. Only qualified employees may work on or with exposed
energized lines or parts of equipment and only qualified employees may work in an area containing unguarded, uninsulated energized lines or parts of equipment operating at 50 volts or more. Electric lines and equipment shall be considered and treated as energized unless the provisions of paragraph (d) and/or paragraph (m) of this section have been followed. If engineers, supervisors and/or inspectors have reason to be near enough to energized lines or parts to be considered qualified employees they will need the required protective apparel. Otherwise, they and warehouse personnel delivering materials should be guided by the distances in tables R-6 through R-10.
(b): The standard addresses exposed conductive articles and clothing. Hardhats meeting ANSI standards for electrical work will be acceptable. The proper apparel should be worn beneath the body harness device.
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(2) Noncurrent carrying metal parts.
The requirement is that noncurrent-carrying metals parts of equipment or devices must be treated as energized unless the installation is inspected and these parts are determined to be grounded. A qualified employee may determine that the noncurrent-carrying metal parts of equipment or devices are grounded before beginning work
(3) Grounding wire under construction.
(q)(2)(iv) and (q)(2)(iv)(D) sets forth rules protecting workers from the hazard of voltage
induced on lines being installed near (and usually parallel to) other energized lines. These rules, which provide supplemental provisions on grounding, would be in addition to those elsewhere in the standard. In general, when employees may be exposed to the hazard of induced voltage on overhead lines, the lines being installed must be grounded to minimize the voltage and to protect employees handling the lines from electric shock. The standard does not provide guidelines for determining whether or not a hazard exists due to induced voltage. The hazard depends not only on the voltage of the existing line, but also on the length of the line being installed and the distance between the existing line and the new one. A hazard is presumed to exist if the induced voltage is sufficient to pass a current of (1) one milliampere through a 500-ohm resistor. It is up to the employer to ensure that employees are protected against serious injury from any voltages induced on lines being installed and to determine whether the voltages are high enough to warrant the adoption of the additional provisions on grounding spelled out in paragraphs (q)(2)(iv)(A) through (q)(2)(iv)(E). (q)(2)(iv)(D) states that grounds must be installed at each work location and at all open dead-end or catch-off points or the next adjacent structure.
(4) Section (q)(2)(v) (Fall Protection).
Section (q)(2)(v) deals with reel handling equipment, including pulling and tensioning devices. It is assumed that this question was addressing paragraph (g)(2)(v) and is answered accordingly. The answer is no to your question of whether a body belt with a safety strap secured over a bracket, crossarm or other piece of equipment such that the safety strap cannot slide down the pole be consider "other fall protection". In addition a body harness secured by a safety strap would not be considered "other fall protection." These items are components of a personal fall arrest system. A personnel fall arrest system means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. In addition 1910.269(g)(2)(i) states that personal fall arrest equipment shall meet the requirements of Subpart E of Part 1926 and provides requirements that limits the maximum arresting force on an employee to 900 pounds with a body belt and 1800 pounds if using a body harness with the maximum free fall distance limited to (6) feet. 1926.104 requires components of the fall arrest system to have a minimum breaking strength of 5,400 pounds and be secured above the point of operation to an anchorage or structural member capable of supporting minimum dead weight of 5,400 pounds. All safety belt and lanyard hardware, except rivets, shall be capable of withstanding a tensile loading of 4,000 pounds without cracking, breaking, or
taking a permanent deformation.
(5) Live Line Tool Testing?
Live line tool testing is covered under 1910.269(j). The rule provides additional
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requirements for the thorough examination, cleaning, repair, and testing of live-line tools on a periodic basis. The tools would undergo this process on a two-year cycle and any time defects are noted during the daily inspection. A complete examination of the hot stick is required. After the examination, the tool must be cleaned and waxed, or it must be repaired and refinished if necessary. A test would also be required after the tool has been repaired or refinished regardless of its composition. A test would also be required after the examination if the tool is made of wood or hollow fiberglass-reinforced plastic(FRP). A test would also be required after the examination if the tool is solid fiberglass-reinforced plastic or foam-filled fiberglass-reinforced plastic tube unless the employer can demonstrate that the examination has revealed all defects that could cause the tool to fail during use. The test method used must be designed to verify the
tool's integrity along its full length and, if made of FRP, its integrity under wet conditions. The test voltages are 75 kV/ft for FRP and 50 kV/ft for wood, and the voltage must be applied for a minimum of (1) one minute. Other equivalent tests are permitted. IEEE standard 978-1984 is a guide to the inspection, care, and testing of live-line tools.
(6) What kind of clothing is acceptable in this statute?
Included in the standard is a note indicating the types of clothing fabrics that the record demonstrated are hazardous to wear by employees exposed to electric arcs. Natural fabrics, such as 100 percent cotton or wool, and synthetic materials that are flame resistant or flame retardant are acceptable under the rule.
I hope these answers give you the information you requested. If I can be of any further assistance, please do not hesitate to contact me.
Sincerely,
W. F. Dillon, Jr.
Assistant Commissioner for Enforcement
CC: Director, Safety Enforcement Division Director, VOSH Training
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November 29, 1995
Danny Cronk Rt. 3, Box 205C Floyd, Virginia 24091
Dear Mr. Cronk
The attached interpretations concerning wearing apparel that meets the requirements of
§1926.269 have been previously issued and apply to your question about the lining of outer garments. If you need additional information please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
Attachments: Letter to Edward Cullop, Jr., dated December 20, 1994 Letter to Rappahannock Electric Cooperative, dated February 8, 1995
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February 2, 1995
Brian D. O (cid:25)Dell Manager of Engineering The Harrisonburg Electric Commission 89 West Bruce Street Harrisonburg, Virginia 22801
Dear Mr. O (cid:25)Dell
This is in response to your letter dated January 23, 1995 requesting information on the requirements of §1910-269 concerning fire retardant clothing. Federal OSHA has indicated there have been numerous requests for more definitive information on the requirements of paragraph (l)(6)(iii) and is expected to issue more guidance in the future. I am enclosing a copy of four interpretations issued by Federal OSHA that addresse different aspects of the requirements.
Your specific question was: Is the requirement of this regulation met if a layer of fire retardant
clothing is present under heavy cotton coveralls that have a liner or fill material that contains one of the four prohibited fabrics?
The requirements of this standard would be met if the cotton coveralls or outer garment is of at least 11 ounces per yard in weight and is designed and worn in a manner that does not expose the liner or fill material to electric arcs or flames. Federal OSHA has determined that clothing made from 100% natural cotton, 11 ounces or more in weight, does not ignite in the presence of a 12 inch long, 3800 ampere electric arc, 12 inches away and lasting 10 cycles at the power line frequency. Even without the FR clothing, the requirements will be met if the outer garment is as indicated above and the amperage is 3800 or less.
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Brian D. O (cid:25)Dell Page 2 February 2, 1995
I hope this information satisfactorily answers your questions. If you require additional
information, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
Enclosures
cc: Deputy Commissioner Director, VOSH Training
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January 10, 1996
Daniel P. Cronk Rt. 3 Box 205C Floyd, Virginia 24091
Dear Mr. Cronk
This is in response to your letter dated January 1, 1996 requesting an opinion on the extent of injury a person might sustain under a specific condition. Specifically: (cid:28)Would wearing a lined Coverall or Biboverall for warmth which has an outer shell that meets the requirements of OSHA rule 1910.269, but is lined with a man made material (polyester, acetate, etc.) and that the lining is not exposed and does not contact the individual (cid:25)s skin, increase the extent of injury that would be sustained to an individual if they were exposed to an electrical arc? (cid:29)
It is not possible to provide an absolute answer to your question. There are many factors that must be considered in making such a determination. Factors such as, the amperage and size of an electric arc, the specific weight and thickness of the clothing, and the distance from the arc are among many factors to be considered. It is the employers responsibility to make a determination, based on working condition of the employee, as to what he will require in the way of clothing that will not increase the extent of injury to the employee. §1910.269(l)(6)(iii) states: (cid:28) The employer shall ensure that each employee who is exposed to the hazards of flames or electric arcs does not wear clothing that, when exposed to flames or electric arcs, could increase the extent of injury that would be sustained by the employee. (cid:29)
The example you give may be acceptable but would have to be approved by the employer who has knowledge of the working conditions of the employee. Thank you for your interest in safety. If I can be of further assistance, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
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June 26, 1997
Sandy Ball Manager, Safety and Health American Red Cross, Greater Richmond Chapter 409 East Main Street Richmond, Virginia 23205
Dear Ms. Ball
This is in response to your letter of June 10, 1997 to Mr. Richard C. Angell, which was forwarded to me for reply, inquiring about what OSHA looks for in first aid kits.
Neither VOSH nor OSHA specifies what is to be included in the first aid kit except for one specific standard. The only mandatory first aid kit contents requirement is in §1910.266 (d)(2) of the logging standard (See attached Copy). In all other cases the contents of the first aid kit are left to the discretion of the consulting physician knowledgeable of the situation and environment in which work is conducted. A consulting physician may be the private doctor of any corporate officer or partner or individual owner acting as an employer. The term
(cid:28) consulting physician (cid:29) does not infer a doctor employed by or contracted by an employer. It may be any reputable doctor knowledgeable about the hazards existing in the industry and in the individual location. The consulting physician may recommend readily available (cid:28) off-the-shelf (cid:29) first aid kits.
If I may be of further assistance, please call me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Deputy Commissioner Region Directors
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MEMORANDUM
To: Jay Withrow
From: William R. Crawford Occupational Safety Compliance Director
Subject: Contested Case Review: County of Fairfax, Centerville High School
Date: December 15, 1999
I have reviewed the subject case, particularly citation 1, item 4, which deals with 1910.219(c)(2)(i), guarding of horizontal shafting. Had not the employer admitted that the room containing the power transmission equipment and boiler was not locked at all times I would recommend reclassifying or vacating the citation. However, the room must be locked and only trained personnel who are aware of the hazards allowed to enter. I think too much emphasis is being placed on the room being used (cid:28) exclusively (cid:29) for power transmission equipment. I think the intent of the word (cid:28) exclusive (cid:29) is to restrict the access to the facility to infrequent visits.
Since boilers do not require frequent attention, nor does power transmission equipment, I see no harm in both being in the same room as long as access is limited to trained personnel that are aware of the hazards.
ANSI B15.1a - 1986 supports this in section E3.2.3 Safe Location. If the employer will agree to
training and restricted access with the room being locked at all times, this would satisfy the ANSI standard and serve as abatement without additional guards being installed on the equipment. The citation should be retained.
1
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February 3, 1995
W. E. Stader Safety Consulting Services, Inc. P. O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This is in response to your letter dated January 6, 1995 requesting an opinion on the use of a foot pedal control to replace two hand controls on form machines.
No mandatory requirements exist for two hand control devices. This is just one of several ways to provide machine guarding at the point of operation. Foot pedal operation is completely acceptable when another way is available to guard the point of operation. In the photographs provided it appears that the plexiglass guard installed on the machine does protect the employee at the point of operation. It is my opinion, based on the information provided, that foot pedal
operation of this machine is acceptable and meets the requirement of the standards.
I hope this information has satisfactorily answered your question. If I can be of further service, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
CC: Deputy Commissioner Director, Vosh Training
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July 27, 1995
R. C. Steele Manager - Corp. Safety and Loss Prevention Virginia Power P.O. Box 26666 Richmond, Virginia 23261
SUBJECT: Overhead and Gantry Cranes
Dear Mr. Steele
This letter is in response to your letter of May 15, 1995 and the Virginia Power letter dated July 5, 1994 requesting clarification of the Overhead and Gantry Cranes Standard, §1910.179.
You are specifically concerned with (n)(3)(v) which states, "While any employee is on the load or hook, there shall be no hoisting, lowering or traveling." You submitted additional information from Lifting Technologies Inc. and an interpretation from federal OSHA for consideration.
We have reviewed the information you submitted and have discussed this with federal OSHA.
We also received a more recent interpretation that may eliminate the need for a variance. The following paragraphs contain guidance for general industry employers relative to use of crane suspended personnel platforms to lift personnel. Please note that because of various safety concerns we have, we are limiting this interpretation to interior overhead or gantry cranes. We further understand that the use of your cranes to lift personnel will not be a frequent occurrence.
General Industry employers may not use an overhead or gantry crane to hoist employees unless;
-
the erection, use, and dismantling of conventional means of reaching the worksite is more hazardous, infeasible or impossible because of structural design or worksite conditions, and
-
the employer totally complies with all requirements of §1926.550(g).
If a general industry employer fully meets the preceding criteria, any violations of applicable
general industry standards, relative to lifting personnel with overhead or gantry cranes, will be considered de minimis in nature.
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R. C. Steele.
Page 2 July 27, 1995
As has been communicated to you in previous correspondence, we consider the exception in 1. above to be very difficult to meet because you must demonstrate that the erection, use, and
dismantling of conventional means to get employees to the work area would be more hazardous, infeasible, or impossible than using your overhead cranes.
Since we have not inspected the sites where you wish to use an overhead crane for personnel lifting, this letter should not be interpreted as our approval of your determination that the requirements in 1.and 2. have been met. That is your decision and responsibility unless you wish to request a variance, in which case we would conduct a variance inspection.
If you have other questions or if I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
CC: Deputy Commissioner Director, Discrimination, Evaluation, Legal and Technical Assistance Director, VOSH Training Region Supervisors, Safety Enforcement Division, Supervisor, Consultation Services
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November 26, 1990
Mr. James Calvert Babcock and Wilcox
P. O. Box 785 Lynchburg, Virginia 24505
Dear Mr. Calvert
You requested an interpretation of Standard 1910.179 as it pertains to the inspection of gantry crane rope. You wanted to know if all the rope had to be
inspected including that on the drum which is not unrolled during use of the crane.
- 179(m)(1) Running Ropes states: "A thorough inspection of all ropes shall be made at least once a month and a certification record which includes the date of inspection, the signature of the person who performed the inspection and an identifier for the ropes which were inspected shall be kept on file where readily available to appointed personnel.
"1910.179(m)(2) Other Ropes states: "All rope which has been idle for a period of a month or more due to shutdown or storage of a crane on which it is installed shall be given a thorough inspection before it is used.
"Both paragraphs refer to a "thorough" inspection of "all" ropes. This is interpreted to mean that all the rope must be observed. Federal OSHA concurs in this interpretation and suggests that the rope be removed from the drum
down to the last two or three turns so the entire rope and end connections can be inspected. If I can be of any further assistance please contact me.
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Sincerely,
William R. Crawford Director Safety Enforcement Division
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June 1, 1994
Melba F. Spencer Personnel Manager JPS Elastomerics Corp.
P. O. Box 389 Stuart, Virginia 24171-0389
Dear Ms. Spencer
This is in response to your letter dated May 9, 1994 requesting information on powered industrial trucks. You stated that you use electric forklift trucks for loading and unloading trucks at the dock and for moving material within the plant. Your questions are shown below with the answer following each question:
Q. 1. "Is it required that each time they leave the lift and are more than 25 feet from it, the key be removed"?
R. 1910.178(m)(5)(i) states that when the powered industrial truck is unattended (operator more than 25 feet away) the power will be shut off and the brakes set. The key does not need to be removed. In fact some powered industrial trucks do not have a key. Removal of the key (if equipped) would
be a local company policy.
Q. 2. "Is it required that each lift be equipped with seat belts and used by each operator, even though they might not be on the lift but a couple of minutes"?-
R. VOSH's position is that employers are obligated to require operators of all powered industrial trucks, equipped with what the American National Standard Institute (ANSI) refers
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to as "restraint devices", to use the devices.
This position is based on the fact that powered industrial trucks generally tend to "tip-over" onto their sides rather than fully rolling over. It is not uncommon for "tip-overs" to occur. However, there is not a specific VOSH Standard that requires use of "restraint devices". Therefore, the only way employers can be required to enforce the use of such devices is under §40.1-51.1 of the Code of Virginia.
This section of the Code requires employers to protect employees from serious and recognized hazards. Recognition of the hazard of "tip-overs" and the need for the use of "restraint devices" is evidenced by certain requirements in the current ANSI standard (ANSI B56.1-Standard for Powered Industrial Trucks) for powered industrial trucks. Powered industrial truck manufacturers and users determine what requirements are incorporated into this standard. There is
a requirement that operators of powered industrial trucks, equipped with "restraint devices", use the devices. There is also a requirement that all powered industrial trucks built after 1992 be equipped with "restraint devices".
VOSH's position, on employers who have powered industrial trucks not equipped with "restraint devices", is that employers should strongly consider obtaining and installing such devices. Any such devices must be designed or approved by the manufacturer of the powered industrial truck.
Several manufacturers provide restraint devices for older models of their trucks.
It should be noted that "restraint devices" are not "seat belts" although they share some of the same characteristics and they may look somewhat like a seat belt. Seat belts are primarily meant to restrain the torso of an operator but are not designed to protect against injuries that can be sustained during a "tip-over" of a powered industrial truck. "Restraint devices" are designed to constrain the body in such a way so as to protect it from injury during a "tip-over". Restraint devices" protect the operator from injury regardless of whether a vehicle is equipped with an overhead
guard.
I hope this provides you with the information you requested.
Please do not hesitate to contact me if I can be of further assistance.
Sincerely,
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William R. Crawford Director, Safety Enforcement Division
CC: Assistant Commissioner for Enforcement Director, VOSH Training Safety Region Supervisors
--- Page 86 ---
June 25, 1997
James R. Allison Long-Airdox Company RR 3, Box 1050 Cedar Bluff, Virginia 24609-8977
Dear Mr. Allison
This is in response to your June 16, 1997 letter to Edward Yuhasz, which was forwarded to me for reply, concerning foam filled tire wheel units for forklifts. You specifically asked if your company can use foam filled tire wheel units on forklifts that have the lock ring tack welded in place.
The Virginia Occupational Safety and Health (VOSH) program has no standard that prohibits tack welding foam filled tire wheel units. VOSH standard §1910.177(f)(9) and (11) indicate that welding on the wheel is not permitted. However, this standard applies to pneumatic tires and wheels that are under pressure and can explode if weakened by heating or welding. Foam filled tires do not pose this explosive hazard. The intention of the standard is to prevent
welding of rim fractures and unauthorized repair of rims or components. Because of the lack of air pressure on foam filled tires the lock ring may separate from the wheel if not secured.
Tack welding is a satisfactory procedure since it localizes the heat to a small area and there is no air pressure on the lock ring.
Additionally, some wheel and tire manufacturers are recommending tack welding the lock ring on foam filled tires. This procedure will result in a (cid:28) throw-away (cid:29) tire and rim assembly as indicated in the letter you provided from Titan Wheel Company. VOSH policy is, if equipment is maintained and operated in accordance with the manufacturers specifications or
recommendations, no citations will be issued. In this case Titan Wheel Company endorses the procedure.
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Long-Airdox Page 2 June 25, 1997
I hope this information is helpful. If I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford
cc: Commissioner Deputy Commissioner Region Directors Consultation Services Supervisor Edward Yuhasz
--- Page 88 ---
March 11, 1997
Lloyd Sholes Safety and Training Services Manager Association of Electric Cooperatives P.O. Box 2340 Glen Allen, VA 23058
Dear Mr. Sholes
This response is to your letter of March 4, 1997 requesting an interpretation of 1910.269 (m)(3)(ii) and 1926.950(d)(1)(ii)(b), de-energized lines and equipment for employee protection.
Q. Does a three single switch blade under the same device number need a tag on each blade if these single blades, under a single device number would be in the same position, at all times, either all three in the closed position or all three in the open position and would a tag on the center blade be sufficient or are tags on each blade and the device required?
R. A tag is to be placed on each of the single switch blades.
This answer is based on information provided by you on March 11, 1997 to Warren Rice, of my staff, that if one of the blades is closed, current will flow through the switch. Furthermore every effort shall be made to prevent the accidental closure of these switches during maintenance operations where employees are affected.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: Deputy Commissioner Regional Directors
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October 10, 1997
A. Lee Stallard Safety Specialist ICI Polyester P.O. Box 411 Hopewell, Virginia 23860
Dear Mr. Stallard
This letter is in response to your September 15, 1995 request for clarification of §1910.147 regarding equipment-specific procedures for multiple point lockout-tagout (LOTO).
As you know, Virginia is one of the states that operate their own Occupational Safety and Health program and as such are required to be as effective as federal OSHA (cid:25)s program. In doing so, we usually adopt federal identical standards and honor interpretations of those standards published by federal OSHA.
You identified several federal OSHA documents that address the provisions of §1910.147 that
pertain to comprehensive (generic) energy control procedures with supplemental checklists.
Virginia recognizes and honors these interpretations. As outlined in the August 14, 1991 memorandum from Patricia K. Clarke and the April 10, 1991 letter it references (attached), pre-written specific procedures are not required for each energy control device if the company provides acceptable specific operational procedures within a work authorization permit, which is used as part of an appropriate set of (cid:28) generic (cid:29) procedures.
The more recent interpretations dated August 12, 1994 and September 19, 1995 (attached) further support that pre-written machine-specific LO/TO procedures are not required in all
circumstances.
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A. Lee Stallard Page 2 October 10, 1997
Thank you for your interest in Occupational Safety and Health. If I may be of further assistance, please contact me at (804) 786-2391 or Warren Rice of my staff at (804) 786-7984.
Sincerely,
William R. Crawford Director, Safety Compliance
CC: Deputy Commissioner Region Directors/Compliance Managers Supervisor, Consultation Services Office of Legal Support
--- Page 91 ---
February 20, 1996
Donald Joyce President Mühlbauer High Tech International 725 Middle Ground Boulevard Newport News, Virginia 23606
Dear Mr. Joyce
This is in response to your letter dated February 9, 1996 requesting an interpretation of §1910.147 as it applies to your machine (Mühlbauer CP 2000/4-BSB). The information you provided indicates that two standards apply to your machine (§1910.147 The control of hazardous energy (lockout/tagout) and §1910.212 General requirements for all machines (machine guarding).
To comply with the machine guarding requirement all machines must protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips, and sparks. Electronic safety devices are one of
the types of guards permitted. Since your machine is computer controlled and will not operate with the access doors open it meets this requirement for machine guarding.
The two functions of production operations and servicing and maintenance of machines must be considered regarding lockout/tagout requirements. §1910.147(a)(2)(i) states (cid:28) This standard applies to the control of energy during servicing and/or maintenance of machines and equipment. (cid:29) Since standard service of your machine requires lockout of the power source and when service and maintenance people use the service key to cycle individual components they are not dealing with unexpected energy releases, you have met the requirement for
lockout/tagout for service and maintenance.
§1910.147(a)(2)(ii) states that normal production operations are not covered by this standard unless an employee is required to remove or bypass a guard or other safety device; or is required to place any part of his or her body into an area on a machine or piece of equipment
1
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Donald Joyce Page 2 February 20, 1996
where work is actually performed upon the material being processed. The exception to this is
that minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection. Your machine meets this requirement with the computer controlling the opening of the access doors and preventing machine operations while the door remains in the open position.
Thank you for your interest in workplace safety and the many features built into your machine.
Please keep a copy of this letter available to present to any Occupational Safety and Health Compliance Officer that may question compliance to these two standards as they are addressed
above. If I can be of further assistance please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: C. Letellier, Consultation Services Supervisor
2
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December 20, 1994
Billie Moore, R.N.
Manager, Safety and Medical Services Tultex Corporation PO Box 5191 Martinsville, Virginia 24115
Dear Ms. Moore: This is in response to your letter dated November 15, 1994, received by fax December 20, 1994 requesting information on the lockout/tagout standard. Your question:
(cid:28) Do sewing machine and knitting machine mechanics have to lockout and tagout machines when they are working on them? (cid:29)
Yes, if employees can be injured (cid:28)due to the unexpected energization or start up of the machines or release of stored energy. (cid:29) However, if the machines are (cid:28)cord and plug connected (cid:29) the operations may not be covered by the lockout/tagout standard provided the requirements set forth
at §1910.147(a)(2)(iii)(A) are met.
I hope this information is helpful, if you need any additional information please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
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September 17, 1997
W. E. Stader President Safety Consulting Services, Inc. 25 Franklin Road P.O. Box 13968 Roanoke, VA 24038
Dear Mr. Stader
This letter is in response to your letter of May 2, 1997, with regards to crawl spaces being considered confined spaces in residential construction.
There are several considerations to be made when applying the confined space standard to a crawl space. First, there has to be a determination as to whether the person entering the space is conducting construction or maintenance on the structure. This would dictate which standard to use, such as the Virginia specific standard on confined spaces in construction, or §1910.146,
Permit Required Confined Spaces for general industry. Second, it has to meet the three criteria outlined in the standard to be considered a confined space:
- Having a limited means of an ingress/egress, and
- Having the potential for engulfment, e.g., solid, liquid, gas or fine particulate matter, and
- Not designed for continuous human occupancy.
How easily a worker can enter and exit a space is affected by both the size and type of
ingress/egress point. Even if the doorway or portal does not impede an ingress/egress, if it is difficult to reach the doorway or portal due to physical constraints, e.g., piping, duct work or conduits then the crawl space would be a confined space.
If a confined space exists, then a determination needs to be made if the space is a non-permit or permit required confined space. The preamble to the standard (see page 6 & 7 of the attached) discusses a drop ceiling area when ascertaining the type of permit space. The same guidance
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W. E. Stader Page 2 September 17, 1997
should be followed for ascertaining whether a crawl space is a non-permit or permit required confined space, e.g., a space having natural or mechanical ventilation to prevent the accumulation of a hazardous atmosphere, and where other hazards are not present is not permit required. Unlike drop ceiling or attic areas, crawl spaces in single, multifamily and commercial buildings contain utility service lines, e.g., water, natural gas, fuel oil, sewage, steam and electric power which pass through them. If these utility services do not terminate at end use equipment in the crawl space, the inherent hazards of the material flowing through the service lines do not have to be considered in the permit space determination unless there is a reason to believe there is a reasonable probability of a rupture or leak where the contents of the
piping would cause serious safety or health hazards
If you need further information please call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Compliance Programs
cc: Deputy Commissioner Regional Directors File
--- Page 96 ---
MEMORANDUM
To: Clarence B. Brooks Compliance Manager
From: William R. Crawford Safety Compliance Director
Subject: Fire Brigade Standard
Date: August 12, 1997
This is in response to your memorandum of August 8, 1997, in which you requested, on behalf of Mr. Dave McDaniel consultant for the Reynolds Metals Company, Grottoes Plastics Plant, interpretations of several sections of VOSH (cid:25)s Fire Brigade Standard (§1910.156) concerning the use of self-contained breathing apparatus while fighting incipient stage fires.
Referencing an OSHA Interpretation dated April 9, 1990, (see attachment A) in the first paragraph OSHA defines an incipient stage fire as a (cid:28)fire which is in the initial or beginning stage and which can be controlled or extinguished by portable fire extinguishers, Class II standpipe or small hose systems without the need for protective clothing or breathing apparatus. (cid:29) In the second paragraph the interpretation further states that (cid:28)incipient stage fire brigade
members are not to enter environments such as smoke-filled and toxic-filled environments where protective clothing or breathing apparatus are required. (cid:29) The seventh paragraph states that (cid:28) where small fires have the capacity to emit toxic fumes, the employer may go beyond OSHA requirements and provide his incipient fire brigade members training and protective equipment equal to or greater than that which is required by the members of a structural fire brigade. (cid:29)
The answer to Mr. McDaniels first concern of using the SCBA for the Hydrochloric Acid fumes and not for the incipient stage fire is answered in the second paragraph of the interpretation as explained in the above paragraph. The second concern of Mr. McDaniel is allowing a company to provide protective equipment to incipient stage fire fighters while fighting small fires that have the capacity to emit toxic fumes. The company must outline the procedures for protecting the incipient stage fire brigade members with regards to toxic fumes, e.g., Hydrochloric Acid, while fighting incipient stage fires in the organizational statement of the fire brigade. The fire brigade members do not have to be classified as structural fire brigade members but the organizational statement must outline the personal protective equipment used and training provided to the fire brigade members which would be commensurate to that of structural fire
brigades, e.g., training in the use of personal protective equipment quarterly instead of annually and if SCBA is used that the company follows the pertinent requirements of 1910.134
1
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Respiratory Protection with emphasis on a physician (cid:25)s statement of health for users of SCBA (cid:25)s and training in the proper procedures for donning and doffing SCBA (cid:25)s as well the requirements of the two-in/two-out for fire brigade members entering atmospheres which are IDLH.
Mr. McDaniels statement that if an employee is fighting a trash can fire which is not producing a large amount of heat or smoke and is joined by a fire brigade member with a respirator on, then the first employee must stop and let the fire burn is false. This would only be true if the first employee is exposed to a toxic atmosphere while fighting the fire. It must also be made clear that during incipient or structural firefighting Positive Pressure Self Contained Breathing Apparatus is the only respiratory protection recognized and not the wearing of a fume or particulate type respirator.
The last concern of Mr. McDaniel (cid:25)s was that if a person working in an area that requires respiratory protection on an ongoing basis could never use a fire extinguisher unless he or she
was a full fledged fire brigade member is also false. Persons can be trained in the use of fire extinguishers without them being fire brigade members and the respirator would have no bearing if they vacated the area when high heat, dense smoke or toxic fumes became present.
If you have additional questions concerning this matter, please call me at 804/786-2391 or Warren E. Rice of my staff at 804/786-7984.
cc: Region Directors Compliance Managers File
2
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September 17, 1993
Patricia H. Falls Executive Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Dear Ms. Falls
This is in response to your recent letters to Assistant Commissioner Dillon on September 1 and 8, 1993. You requested information on two subjects: (1) Steel Toe Shoes and (2) a Safety Alert on Contact Lenses.
- You provided a copy of a flier that alleged a safety hazard when wearing contact lenses when exposed to electrical arcing or sparking. This is something that comes up from time to time as you can see from the attached copy of a 1983 newspaper clipping.
I have attached information that shows medically there is no more of a hazard from electrical arcing with contact lenses than there is without them. Proper eye protection (ANSI Z87.1 - 1968) from the arc must be worn in either case. I have also attached Federal OSHA's interpretation on the use of contact lenses during welding operations.
- Your second question was whether steel-toed and steel-shanked "tennis" shoes are acceptable on construction sites. Steel-toed tennis type shoes are acceptable providing they meet ANSI Z41 -1967 requirements. As a practical matter, if the employer is providing the "tennis" type shoe, it would probably be more cost efficient to purchase a more durable leather shoe that last longer under conditions found on construction sites. The shoe should have a label, usually on the inside, showing its conformance with ANSI Z41 - 1967.
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I hope this information is helpful. If I can be of any further help please call me at 804-786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division Attachment
CC: Assistant Commissioner for Enforcement Safety Enforcement Region Supervisors
--- Page 100 ---
September 17, 1993
Patricia H. Falls Executive Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Dear Ms. Falls
This is in response to your recent letters to Assistant Commissioner Dillon on September 1 and 8, 1993. You requested information on two subjects: (1) Steel Toe Shoes and (2) a Safety Alert on Contact Lenses.
- You provided a copy of a flier that alleged a safety hazard when wearing contact lenses when exposed to electrical arcing or sparking. This is something that comes up from time to time as you can see from the attached copy of a 1983 newspaper clipping.
I have attached information that shows medically there is no more of a hazard from electrical arcing with contact lenses than there is without them. Proper eye protection (ANSI Z87.1 - 1968) from the arc must be worn in either case. I have also attached Federal OSHA's interpretation on the use of contact lenses during welding operations.
- Your second question was whether steel-toed and steel-shanked "tennis" shoes are acceptable on construction sites. Steel-toed tennis type shoes are acceptable providing they meet ANSI Z41 -1967 requirements. As a practical matter, if the employer is providing the "tennis" type shoe, it would probably be more cost efficient to purchase a more durable leather shoe that last longer under conditions found on construction sites. The shoe should have a label, usually on the inside, showing its conformance with ANSI Z41 - 1967.
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I hope this information is helpful. If I can be of any further help please call me at 804-786-2391.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division Attachment
CC: Assistant Commissioner for Enforcement Safety Enforcement Region Supervisors
--- Page 102 ---
January 31, 1995
Allen Dougherty Human Resource Manager Joy Technologies Inc.
P. O. Box 256 Duffield, Virginia 24244
Dear Mr. Dougherty
This is in response to your letter dated December 21, 1994, which you faxed to me on January 19, 1995. I apologize for the delay; however, the original letter was never delivered. You wanted to know if JOY Technologies is required to pay the full cost of safety shoes with metatarsal guards.
We have interpreted payment of personal protective equipment (PPE) by the employer to apply to items of specialized equipment that have no utility away from the work place. Metatarsal
guards had, in the past, been considered specialized and used only in the work place.
However, the examples of technologically advanced safety shoes with built-in metatarsal guards, provided with your letter, suggest this interpretation may no longer be valid. As recently as January 30, 1994 Mr. Stanley, whom you reference in your letter, said that the interpretation issued on October 18, 1994 needs to be clarified regarding metatarsal safety shoes.
I expect additional guidance from Federal OSHA on this subject. However, the policy described in your letter that JOY Technologies is currently following seems reasonable and
will not be considered a violation of Virginia Occupational Safety and Health (VOSH) standards under current interpretation of OSHA policy.
--- Page 103 ---
Allen Dougherty Page 2 May 2, 2003
I hope this information is helpful. If I can be of further assistance, please contact me at (804)-
786-3291.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
cc: Deputy Commissioner
--- Page 104 ---
February 13, 1995
Bart Johnson Loss Control Administrator City of Newport News 2400 Washington Avenue Newport News, Virginia 23607
Dear Mr. Johnson
Thank you for the letter dated February 6, 1995 requesting information about which standards cover your operations. Horticultural operations, specifically tree trimming, fall under the category of General Industry and are covered by VOSH §1910 standards and the Overhead High Voltage Line Safety Act. Also, you are required to follow the American National Standards Institute(ANSI) standard ANSI Z133.1-1988 (copy attached).
This determination is based on the Standard Industrial Classification Code 0783 that applies to:
Tree trimming for public utility lines; Ornamental trees: planting, pruning, bracing, spraying, removal and surgery; and Utility line tree trimming services.
Specific standards that apply to your activity include §1910.132, 1910.133, 1910.135, 1910.136 and 1910.138 for personal protection; §1910.242 and 1910.243 for portable hand tools; §1910.212 for machine guarding; §1910.268 if working near telecommunications lines; and §1910.269(r) for electric power lines; and the Virginia Overhead High Voltage Line Safety Act.
It should be noted that there may be differences in the approach distances to high voltage lines in the various standards and the Virginia High Voltage Line Safety Act and that the greatest (most stringent) distance takes precedence.
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Bart Johnson Page 2 February 13, 1995
There may be other portions of §1910 standards that apply based upon the situation and
equipment used. However, these are the most likely standards that apply. I hope this information is helpful. If I can be of further assistance, please contact me at 804-786-2391.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
Enclosures
c. Deputy Commissioner
--- Page 106 ---
September 5, 1996
Lieutenant Ray Bristow Office of the Fire Chief City of Salem 105 South Market Street Salem, Virginia 24153-0869
Dear Lieutenant Bristow
This letter is in response to your letter of July 15, 1996 to the Federal Occupational Safety and Health Administration regarding firefighting staffing and fire stations in an urban setting.
As Paula White (cid:25)s letter of August 23, 1996 to you states, Virginia operates a State Plan. Virginia Occupational Safety and Health (VOSH), under the Department of Labor and Industry is responsible for the occupational safety and health of working men and women throughout the Commonwealth of Virginia. Although federal OSHA does not cover state and local government in the Occupational Safety and Health Act of 1970, Virginia has included public sector employees in their State Plan at the federal government (cid:25)s recommendation. Virginia has adopted standards which are identical to or at least as effective as federal OSHA standards as required by the OSHA Act.
Regarding your questions on staffing and fire stations the answers are as follows:
Question 1: Does OSHA suggest staffing levels?
Answer: No, OSHA standards do not directly state that a fire station or apparatus responding to an emergency have a dedicated number of persons at any given time. However, there are standards which require an employer to have back up persons available when individuals enter an immediately dangerous to life or health (IDLH) atmosphere, e.g., 1910.134(e)(3)(ii) of the respiratory standard and 1910.120(q)(3) of the hazardous waste site and emergency response standard. The OSHA fire brigade standard, 1910.156(f)(1)(ii), requires that persons sent into structures to fight fires must be equipped with a self-contained breathing apparatus which conforms to the respiratory standard 1910.134.
Question 2: Does OSHA suggest staffing levels based on (cid:28) X (cid:29) number of firefighters per 1000 populations?
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Lieutenant Ray Bristow Page 2 September 5, 1996
Answer: No, OSHA does not dictate to an employer how many persons are needed to accomplish a task. There are other nationally recognized consensus standards such as the National Fire Protection Association (NFPA) standards which localities may adopt. There are also insurance organizations such as ISO which recommend the number of firefighters and fire stations required for proper coverage of a given locality.
Question 3: Does OSHA suggest the number of fire stations based on square miles of coverage?
Answer: No, as explained in question 2, there are other organizations which localities utilize to achieve proper fire protection of a given locality.
The OSHA Act also allows the use of a General Duty Clause which gives the federal and state compliance programs the ability to use specific nationally-recognized consensus standards such as NFPA and American National Standards Institute (ANSI).
VOSH has established an AD HOC committee consisting of representatives of the Virginia Fire Chief Associations, Municipal League, Volunteer Firefighters Associations, Professional Firefighters Associations, the Department of Fire Programs and the Department of Emergency Services. This committee will evaluate emergency response practices and other safety issues surrounding fire and emergency response organizations and will assist VOSH in developing sound compliance directives for those organizations. If you have issues which need to be brought before the AD HOC committee, you may contact one of these organizations.
Please let me know if you need additional information.
Sincerely,
William R. Crawford, Director Occupational Safety Compliance Division
cc: Commissioner Deputy Commissioner File
--- Page 108 ---
July 28, 1994
Patricia H. Falls Executive Vice President Firstline Safety Management Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Dear Ms. Falls
This is in response to your letter dated June 27, 1994 requesting information on safety cans. You wanted to know if safety cans were required for diesel fuel and kerosene.
The answer is almost always yes. The flash point and quantity are the determining factors for the type container to be used. The National Fire Protection Association (NFPA) shows the flash point for diesel to be between 100°F and 125°F and for kerosene between 100°F and 162°F, depending upon the grade. The material safety data sheet (MSDS) for the product would be the source of the flash point. Both general industry and construction standards require metal safety cans for flammable and combustible liquids.
§1910.106(a)(18) & (19) define "combustible liquid" and "flammable liquid" and the various classes of liquids within each category. A combustible liquid is any liquid having a flash point at or above 100°F. A flammable liquid is any liquid having a flash point below 100°F. Both kerosene and diesel fuel have a flash point at or above 100°F making them a combustible liquid. §1910.106(d)(2) and table H-12 cover the requirements for containers in general industry.
For the construction industry, §1926.152(a) requires the use of safety cans for flammable liquids in quantities in excess of one gallon. §1926.155 defines combustible liquid and any liquid having a flash point at or above 140°F and below 200°F. Flammable liquid is any liquid having a flash point below 140°F and having a vapor pressure not exceeding 40 pounds per square inch (absolute)at 100 deg. Therefore, unless the product has a flash point greater than 140°F, a safety can would be required for the construction industry.
I hope this information is helpful. If I can be of any further assistance, please call me.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
--- Page 109 ---
Patricia H. Falls Page 2 July 28, 1994
CC: Deputy Commissioner Region Supervisors, Safety Enforcement Division Director, VOSH Training Division
--- Page 110 ---
August 9, 1993
Thomas B. Taylor Secretary/Treasurer
S. R. Jones, Jr. and Sons, Inc.
Star Route 1 Box 90 Gasburg, Virginia 23857
Dear Mr. Taylor
This addresses your letter dated July 15, 1993, to the United States Department of Labor, OSHA, pertaining to containers for gasoline. The Commonwealth of
Virginia is responsible for regulating the Occupational Safety and Health Standards in Virginia; therefore, your letter was referred to this agency to respond.
In order for a state to enforce its own Occupational Safety and Health Program it must meet certain requirements, one of which is to be at least as effective as the Federal OSHA. As a result, almost all of Virginia's standards are the same as used by Federal OSHA to include 1910.106 that covers gasoline containers.
Your concern for the safety of your employees is also our concern and the concern of the United States Department of Labor. It is also the concern of the National Fire Protection Association (NFPA) and the American National Standards Institute (ANSI) that have developed National consensus standards and safety codes. There are both standards and safety codes that address Safety Cans used for flammable liquids. It has been found that a properly designed and maintained Safety Can is significantly safer than the unapproved cans permitted many years ago.
A Safety Can is defined as: An approved (by a national laboratory) container of not more than 5 gallon capacity having a spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure (see attached diagram). If a can left in the sun develops enough internal pressure, it will leak past the spring loaded combination fill opening and relief vent. Opening the vent slowly before attempting to pour from the can will prevent
--- Page 111 ---
a sudden release of gasoline and the possibility of splashing on an employee.
Thank you for your interest in employee safety and a safe workplace. I hope this information has been helpful and if I can be of any further assistance, please do not hesitate to contact me.
Sincerely,
William R. Crawford Director Occupational Safety Enforcement Division
CC: Assistant Commissioner for Enforcement
--- Page 112 ---
May 13, 1994
Patricia H. Falls Executive Vice President Firstline Safety Management, Inc.
P. O. Box 230 Lovettsville, Virginia 22080
Dear Ms. Falls
This is in response to your letter dated April 12, 1994 requesting information concerning the logging industry. I apologize for the delay in providing the requested information. You had several questions that are restated below:
-
Q: "Do the contractors have to comply with bloodborne pathogens?" A. Logging comes within the general industry classification (SIC 24) and therefore the standards for bloodborne pathogens apply.
-
Q: "Does the hearing conservation program including written and base line testing required?" A : §1910-95 requires a conservation program and baseline and annual testing when employees are exposed to a time weighted average of 85 decibels. The program does not have to be written.
-
Q: "Is the complete respiratory program including pulmonary and safe fitting required?" A. §1910.134 outlines a minimum acceptable respiratory protection program. The determination as to whether a program is required is the responsibility of the employer based on the existing conditions. It is unlikely that respirators would be required in most logging operations.
-
Q: "Is a snake bite kit required in all logging First Aid Kits?"
A. §1910.266(c)(vii) requires a snake bite kit be included in first aid kits when working in areas where poisonous snakes exist. Federal OSHA has no interpretation of the standard that exempts this. Federal OSHA did provide information from a Red Cross book (attached) that states you should use a snake bite kit when professional medical care cannot be provided within 30 minutes. Furthermore, you should not cut the wound but suction the puncture with the snake bite kit if professional medical care is not started
--- Page 113 ---
within 30 minutes. Therefore, it will be a violation of VOSH standards if the first aid kit does not contain a snake bite kit. The conditions will dictate the classification of the violation. If logging operations were in an area that allowed quick access to professional medical care it would be considered a de minimis violation. However, if the location was remote and/or without transportation, the violation may be considered as serious.
- Q: "What type of field sanitation is required such as port-a-johns and portable handwashing facilities?" A. §1910.141 covers sanitation requirements for general industry and does not specify types of equipment as long as they provide the required service. Handwashing for example,
may be accomplished several ways as long as potable water and soap are used.
The requirement for toilet and handwashing facilities does not apply to mobile crews or to unattended work locations so long as employees working at these locations have transportation immediately available to nearby toilet facilities which meet the requirements of the standards.
I hope this information is helpful. If I can be of further assistance please contact me.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
CC: Assistant Commissioner for Enforcement
Director, Health Enforcement Division Safety and Health Enforcement Supervisors Director, VOSH Training
--- Page 114 ---
March 17, 1997
Mary A Riach General Manager Humphrey Manlift Company, Inc.
P. O. Box 385 Faribault, Minnesota 55021
Dear Ms. Riach
This reply is in response to your letter of December 30, 1996 to Mr. Jay Withrow with the Virginia Department of Labor and Industry. I apologize for the delay in responding to your request.
The federal OSHA standard you reference has been adopted and enforced in Virginia identically as §1910.68 and the ANSI Standard referenced in the standard is ANSI A90.1969 Safety Code for Manlifts.
Enclosed is a copy of the referenced standard you requested. If I may be of further assistance
please call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: file
--- Page 115 ---
September 17, 1997
Mary A Riach General Manager Humphrey Manlift Company, Inc.
P. O. Box 385 Faribault, Minnesota 55021
Dear Ms. Riach
This reply is in response to your letter of December 30, 1996 to Mr. Jay Withrow with the Virginia Department of Labor and Industry. I apologize for the delay in responding to your request.
The federal OSHA standard you reference has been adopted and enforced in Virginia identically as §1910.68 and the ANSI Standard referenced in the standard is ANSI A90.1969 Safety Code for Manlifts.
Enclosed is a copy of the referenced standard you requested. If I may be of further assistance
please call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: file
--- Page 116 ---
July 20, 1995
Richard R. Waddell Manager, Safety, Health and Environment Jewel Coal & Coke Company P.O. Box 70 Vansant, Virginia 24656
Dear Mr. Waddell
This is in response to your July 11, 1995 request for an interpretation of the Virginia Occupational Safety and Health standards pertaining to the use of a crane mounted personnel platform to lift personnel while performing repair and maintenance functions. You provided information on two options your company is considering for purchase; the Grove AT1100 crane with personnel platform and the Simon self-leveling platform. Both systems are acceptable.
When the personnel platform is attached to the boom of a vehicle-mounted crane, the device is covered by 1910.67, vehicle-mounted elevating and rotating work platforms, or 1926.556,
aerial lifts. These paragraphs require upper and lower controls for extensible and articulating boom platforms which are primarily designed as personnel carriers. OSHA has reviewed these standards and have concluded that 1910.67 (c) (2) (ix) and 1926.556 (b) (2) (ix) apply only if the lifting of personnel is a routine function of the crane (i.e., one of primary uses). Under such circumstances, the crane and attached platform as a combined unit must be equipped with upper and lower controls. The standards do not address non-routine attachment of accessory platforms to extensible or articulating booms for the purpose of positioning employees.
Although upper controls are not always required, OSHA believes that there are certain
conditions under which the use of an aerial lift without upper controls is unsafe. If work is required to be performed from a personnel platform near energized power lines, moving or rotating components of equipment, or other hazardous locations where precise control of the platform is necessary to eliminate or reduce hazards to employees, the absence of upper controls might result in a citation under the Virginia Code.
If I can be of further assistance please contact me at (804) 786-2391.
--- Page 117 ---
Richard R. Waddell Page 2 July 20, 1995
Sincerely,
William R. Crawford Director, Safety Enforcement Division
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July 8, 1997
Richard E. Barrett, Sr.
President B C Wood Products, Inc. 11364 Air Park Road Ashland, Virginia 23005
RE: Inspection Number 126633635 dated 12 February 1997
Dear Mr. Barrett
This is in response to your letter to Commissioner Bell requesting a permanent variance to §1910-24(b) which was forwarded to me for the reply. I apologize for the delay in this reply.
I have reviewed your letter and the photographs attached and have concluded that you do not require a variance to the standard. It is my interpretation of §1910.24(b) that you are now in compliance with the standard for the following reasons:
a. Even though the standard states, (cid:28) Fixed stairs shall be provided for access from one structure level to another where operations require regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. (cid:29) The standard also states, (cid:28)It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice. (cid:29)
b. VOSH standard §1910.23(c)(2) further states that, (cid:28) Runways used exclusively for
special purposes (such as oiling, shafting, or filling tank cars) may have railings on one side omitted where operating conditions necessitates such omission, providing the falling hazard is minimized by using the runway of not less than 18" wide. (cid:29) This is interpreted to apply to filling the nail bowl of the Viking Nail Machine.
c. Furthermore, §1910.30(b)(3) requires that wood platforms used on the floor in front of machines shall be substantially constructed. This appears to be the case with your
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Richard E. Barrett, Sr.
Page 2 July 8, 1997
platform. Also, based on the photographs provided, fixed stairs may present a greater
hazard to your operations than the fixed ladder.
A copy of this letter is being provided to Mr. Richard Angell who will contact you concerning your inspection and the settlement of the case. Please keep a copy of this letter on file to show that your platform has been reviewed and found to be in compliance.
Thank you for your interest in safety and if I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Region Directors/Compliance Managers Mr. Richard Angell Supervisor, Consultation Services File
--- Page 120 ---
February 15, 1994
W. E. Stader Safety Consulting Services, Inc. P. O. Box 13968 Roanoke, Virginia 24038
Dear Mr. Stader
This is in response to your letter dated January 5, 1994 requesting information on Modular Home manufacturing. You specifically requested our thoughts on how to provide fall protection while workers install shingles on the roofs of modular homes.
I am unable to specifically recommend any one method of providing fall protection without knowing more about the physical characteristics of the facility in which work is being conducted.
In similar manufacturing facilities where mobile homes or modular homes are assembled we have noted some of the following methods in use:
a. Mobile scaffolds that have a platform at the height of the roof edge and when moved up against the side of the unit, provide a working platform as well as fall protection.
These are similar in principle to those used in the manufacture of large aircraft and can be moved away when not needed.
b. A line ( sometimes called catenary line, life line, or static line) extended along the long axis of the modular home and above the peak of the roof to which the employee can connect his lanyard.
c. A motion stopping safety system (MSS) that works from an automatic reel and cable to which the employee is connected by way of a lanyard and belt.
d. One other procedure we have seen is to fabricate the roof on the floor of the shop, raise it above the walls of the unit, move it horizontally into place, and lower it onto the modular unit.
These are only a few examples of fall protection techniques used in manufacturing modular
--- Page 121 ---
homes. I hope this information is helpful. If I can be of any further assistance, please contact me.
Sincerely,
William R. Crawford Director, Safety Enforcement Division
CC: Assistant Commissioner for Enforcement Region Supervisors, Safety Enforcement Division Supervisor, Consultation Services
--- Page 122 ---
March 3, 1997
Jimmy A. English Building Official/Safety Coordinator City of Bedford P.O. Drawer 807 Bedford, VA 23563
Dear Mr. English
This response is to your letter of January 23, 1997, referencing the minimum dimensions of the roof access ladder at the Bedford Middle School. I apologize for the delay.
Although the dimensions do not fall into the clearances allowed by the standard, it appears that the use of this ladder would not create a direct or immediate relationship to safety or health.
Therefore, a de minimis violation is allowed concerning this ladder. It is recommended that employees who are required to use this ladder receive training in the proper climbing with regards to the close areas around the access ladder. I also suggest you affix a sign or label warning that the ladder does not meet minimum dimensions.
If you need further assistance please call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
--- Page 123 ---
July 8, 1997
Richard E. Barrett, Sr.
President B C Wood Products, Inc. 11364 Air Park Road Ashland, Virginia 23005
RE: Inspection Number 126633635 dated 12 February 1997
Dear Mr. Barrett
This is in response to your letter to Commissioner Bell requesting a permanent variance to §1910-24(b) which was forwarded to me for the reply. I apologize for the delay in this reply.
I have reviewed your letter and the photographs attached and have concluded that you do not require a variance to the standard. It is my interpretation of §1910.24(b) that you are now in compliance with the standard for the following reasons:
a. Even though the standard states, (cid:28) Fixed stairs shall be provided for access from one structure level to another where operations require regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. (cid:29) The standard also states, (cid:28)It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice. (cid:29)
b. VOSH standard §1910.23(c)(2) further states that, (cid:28) Runways used exclusively for
special purposes (such as oiling, shafting, or filling tank cars) may have railings on one side omitted where operating conditions necessitates such omission, providing the falling hazard is minimized by using the runway of not less than 18" wide. (cid:29) This is interpreted to apply to filling the nail bowl of the Viking Nail Machine.
c. Furthermore, §1910.30(b)(3) requires that wood platforms used on the floor in front of machines shall be substantially constructed. This appears to be the case with your
--- Page 124 ---
Richard E. Barrett, Sr.
Page 2 July 8, 1997
platform. Also, based on the photographs provided, fixed stairs may present a greater
hazard to your operations than the fixed ladder.
A copy of this letter is being provided to Mr. Richard Angell who will contact you concerning your inspection and the settlement of the case. Please keep a copy of this letter on file to show that your platform has been reviewed and found to be in compliance.
Thank you for your interest in safety and if I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Region Directors/Compliance Managers Mr. Richard Angell Supervisor, Consultation Services File
--- Page 125 ---
March 31, 1997
Robert Ehrhart Project Engineer Virginia Department of Environmental Quality Piedmont Regional Office 4949-A Cox Road Glen Allen, Virginia 23060
Dear Mr. Ehrhart
This response is to your letter of March 26, 1997 requesting clarification of specifications for (cid:28) Fixed Ladder Entry into Conical Wastewater Manholes. (cid:29) There must be a clear understanding of the definitions of a ladder, a fixed ladder, and manhole steps imbedded in walls or risers of conical top sections of manholes in order to address your question. The definitions are:
Ladder: A ladder is an appliance usually consisting of two side rails joined at regular intervals by cross pieces called steps, rungs, or cleats, on which a person may step in ascending or
descending.
Fixed Ladder: A ladder permanently attached to a structure, building or equipment.
Manhole Steps: Individual step bolts or manhole steps, of which are imbedded in walls or risers of conical top sections of manholes.
If a fixed ladder is used, the ladder must comply with the standards as outlined in §1910.27.
However, in the absence of a specific §1910 standard to the contrary, the Virginia
Occupational Safety and Health (VOSH) Division of the Department of Labor and Industry will accept individual step bolts or manhole steps installed which meets those dimensions outlined in a proposed standard dated April 10, 1990 entitled 1910.24, Step Bolts and Manhole Steps (copy of page 13399 attached).
In brief, step bolts and manhole steps shall be spaced uniformly and continuous not less than 6 inches nor more than 18 inches apart. The minimum clear width of step bolts shall be 4 ½
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Robert Ehrhart Page 2 March 31, 1997
inches and the minimum clear width of manhole steps shall be 10 inches. Toe clearance for
step bolts shall be 7 inches unless obstructions cannot be avoided then may be reduced to 4 ½ inches. Manhole steps must maintain a toe clearance of 4 inches from the point of embedment on the wall to the outside face of the step. The toe clearance at the center of the manhole step shall have a minimum of 4 ½ inches of space from the wall to the outside face of the step.
Also, step bolts and manhole steps shall be designed to prevent the employee (cid:25)s foot from slipping or sliding off the end.
If you need further assistance please, call me at 804/786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Deputy Commissioner Region Directors
--- Page 127 ---
May 31, 1991
Mr. Thomas D. Dennison, AIA Senior Architect
Pfizer, Inc. 235 East 42nd Street New York, NY 10017-5755
Dear Mr. Dennison
This is in response to your request for an interpretation of OSHA 1910.24 and
OSHA 1910.27 as they pertain to headroom clearance. You indicated there are conflicting requirements although I find none.
You must keep the two referenced standards separate as they pertain to two different methods of attaining access to different levels of a structure.
a. 1910.24 pertains to Fixed Industrial Stairs and requires a vertical clearance above any stair tread to an overhead obstruction of at least 7 feet measured from
the leading edge of the tread.
b. 1910.27 pertains to Fixed Ladders and requires a minimum clearance of 7 feet and a maximum clearance of 8 feet from the bottom of the cage to the floor.
Your letter indicated that a clearance of 6 feet 8 inches was "tolerable" by OSHA 1910.27 and BOCA 816.2.2 however, 1910.27 does not mention a distance of 6 feet 8 inches. Boca 816.2.2 does state that a minimum headroom of 6 feet 8
inches is required. OSHA 1910.37(i) which covers means of egress headroom states: ... in no case shall the ceiling height be less than 7 feet 6 inches nor any projection from the ceiling be less than 6 feet 8 inches from the floor. This seems to be in agreement with BOCA 816.2.2.
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To specifically determine which standard applies you will need to determine whether it is a fixed industrial stair, fixed ladder, or a means of egress as defined in 1910.35 and the general requirements in 1910.36.
If I can be of any further assistance please contact me.
Sincerely,
William R. Crawford Director Safety Enforcement Division
CC: Assistant Commissioner for Enforcement
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July 8, 1997
Richard E. Barrett, Sr.
President B C Wood Products, Inc. 11364 Air Park Road Ashland, Virginia 23005
RE: Inspection Number 126633635 dated 12 February 1997
Dear Mr. Barrett
This is in response to your letter to Commissioner Bell requesting a permanent variance to §1910-24(b) which was forwarded to me for the reply. I apologize for the delay in this reply.
I have reviewed your letter and the photographs attached and have concluded that you do not require a variance to the standard. It is my interpretation of §1910.24(b) that you are now in compliance with the standard for the following reasons:
a. Even though the standard states, (cid:28) Fixed stairs shall be provided for access from one structure level to another where operations require regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. (cid:29) The standard also states, (cid:28)It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice. (cid:29)
b. VOSH standard §1910.23(c)(2) further states that, (cid:28) Runways used exclusively for
special purposes (such as oiling, shafting, or filling tank cars) may have railings on one side omitted where operating conditions necessitates such omission, providing the falling hazard is minimized by using the runway of not less than 18" wide. (cid:29) This is interpreted to apply to filling the nail bowl of the Viking Nail Machine.
c. Furthermore, §1910.30(b)(3) requires that wood platforms used on the floor in front of machines shall be substantially constructed. This appears to be the case with your
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Richard E. Barrett, Sr.
Page 2 July 8, 1997
platform. Also, based on the photographs provided, fixed stairs may present a greater
hazard to your operations than the fixed ladder.
A copy of this letter is being provided to Mr. Richard Angell who will contact you concerning your inspection and the settlement of the case. Please keep a copy of this letter on file to show that your platform has been reviewed and found to be in compliance.
Thank you for your interest in safety and if I can be of any further assistance, please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance
cc: Region Directors/Compliance Managers Mr. Richard Angell Supervisor, Consultation Services File
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August 18, 1995
John P. Cone, Jr.
HDH Architecture 872 West Salem Plaza Salem, Virginia 24153
Dear Mr. Cone
This responds to your fax request for information concerning fall protection for skylights.
You specifically were concerned about VOSH §1910.23(a)(4) regarding fall protection and whether a warning label on the skylight meets the requirement.
The standards do not provide for and federal OSHA has not established any policy or interpretation that indicates a warning label on the skylight meets the requirement to provide fall protection. VOSH §1910.23(a)(4) requires that skylights in the roof of buildings through which persons may fall while walking or working shall be guarded by a standard skylight screen or a fixed standard railing on all exposed sides.
When a skylight screen is selected for safeguarding the opening, and in the event the skylight is constructed of a material subject to fracture, as glass would be, then the skylight must at a minimum be provided with a skylight screen capable of withstanding a load of at least 200 pounds applied perpendicularly at any one area on the screen (§1910.23(e)(8) requires that the screen support at least 200 pounds). A skylight installed and constructed of a material like plastic or lexan that can provide the necessary structural integrity to support a load of at least 200 pounds is not required to be further safeguarded, since it would meet the intended function of a screen as well.
It is the responsibility of the employer to provide evidence from the manufacturer of the skylight that it meets the minimum strength requirement to support 200 pounds. This may be by permanent labels on the skylight, etching the information into the skylight at time of manufacture, or by documentation from the manufacturer that can identify the skylight.
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John P. Cone, Jr.
Page 2 August 18, 1995
I hope this information is helpful to you. If you need further assistance or information please contact me at (804) 786-2391.
Sincerely,
William R. Crawford Director, Safety Compliance Division
cc: Deputy Commissioner Safety Compliance Region Supervisors
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September 26, 1997
Donald L. Struminger, P.E.
President Virginia Linen Service, Inc.
P. O. Box 189 Petersburg, Virginia 23803
Dear Mr. Struminger
This response is to your letter of May 12, 1997 to Mr. Richard Angell regarding a variance for guardrail heights on ladders in the wash wheel areas of your establishment.
The standard has specific requirements for stair rails in the general industry setting. There are exceptions for clearance requirements if the space utilized is in an area which is close to other pieces of equipment and needs to be altered to fit in to that area and provide a safe access for employee travel. This does not seem to be the case in the two stairs cited during inspection 125453308 on March 11, 1997. The photographs provided indicate enough clearance to bring the top rail into the proper height required by the standard and adjust the mid rails to half the
distance between the top rail and the toe of the tread risers. Therefore a variance to this requirement will not be considered.
If I may be of may be of further assistance, please contact me at (804) 786-2391 or Warren Rice of my staff at (8040 786-7984.
Sincerely,
William R. Crawford Director, Safety Compliance
Food Flavoring Manufacturing Safety ProgramDoc ID: 14-440
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VOSH PROGRAM DIRECTIVE: 14-440 ISSUED: March 15, 2010
SUBJECT: National Emphasis Program – Facilities that Manufacture Food Flavorings Containing Diacetyl
A. Purpose.
This directive transmits to field personnel policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate hazards associated with exposures to flavoring chemicals in facilities that manufacture food flavoring containing diacetyl.
This program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Access Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel, and specifically to Occupational Health Compliance and Consultation Services personnel.
C. Reference.
OSHA Instruction CPL 03-00-011 (October 30, 2009).
D. Cancellation.
Not Applicable.
E. Effective Date.
March 15, 2010.
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F. Action.
Directors and Managers shall ensure that the policies and procedures established in this Directive are followed.
Edward A. Hegamyer Acting Commissioner
Attachment: National Emphasis Program – Facilities that Manufacturing Food Flavorings Containing Diacetyl based on OSHA Instruction CPL 03-00-011 (October 30, 2009). (Edited to delete section
XIII.D.2. through section XIII.D.5.)
2
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
29 CFR VOSH Standard
Regional Administrator Commissioner of Labor and Industry
Area Director Regional Director
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Agency Department
Office of Statistics VOSH Research and Analysis
Compliance Safety and Health (CSHO) CSHO and/or Industrial Hygienist
OSHA Directives: VOSH Program Directives
Field Inspection Reference Manual (FIRM) VOSH Field Operations Manual (FOM)
OSHA Instruction CPL 02-02-038 VOSH Program Directive 02-060A, Inspection Procedures for the Hazard Inspection Procedures for the Communication Standard (HCS) (3/20/98) Hazard Communication Standard, 1910.1200,
- 99, 1917.28, 1918.90, 1926.59 and 1928.21 (9/15/98)
OSHA Instruction CPL 02-00-120 VOSH Program Directive 02-411, Inspection Procedures for the Respiratory Inspection Procedures for the Protections Standard (9/25/98) Respiratory Protection Standard, 1910.134 (12/15/98)
OSHA Instruction CPL 02-02-072 VOSH Program Directive 02-022A, Rules of Agency Practice and Procedures 29 CFR 1913.10, Rules of Agency Practice and Concerning OSHA Access to Employee Procedure Concerning OSHA Access to Employee Medical Records (11/01/09)
3
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DIRECTIVE NUMBER: CPL 03-00-011 EFFECTIVE DATE: 10/30/09
SUBJECT: National Emphasis Program – Facilities that Manufacture Food Flavorings Containing Diacetyl
ABSTRACT
Purpose: This Instruction describes policies and procedures for implementing a National Emphasis
Program (NEP) to identify and reduce or eliminate hazards associated with exposures to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl.
Scope: This Instruction applies OSHA-wide.
References: A. OSHA Instruction CPL 02-00-148, March 26, 2009, Field Operations Manual (FOM).
B. OSHA Notice 09-05 (CPL 02)-Site-Specific Targeting 2009 (SST-09) Effective, July 20, 2009.
C. OSHA Instruction CPL 02-02-038, March 20, 1998, Inspection Procedures for the Hazard
Communication Standard (HCS).
D. OSHA Instruction CPL 02-00-120, September 25, 1998, Inspection Procedures for the Respiratory Protection Standard.
E. OSHA Instruction CPL 02-00-025, January 4, 1995, Scheduling Systems for Programmed Inspections.
F. OSHA Memorandum for Regional Administrators, Area Directors, State Plan Designees, Consultation Program Managers, October 12, 2004, Subject: Popcorn/Flavoring Establishment Assistance.
G. OSHA Publication “Hazard Communication Guidance for Diacetyl and Certain Food Flavorings Containing Diacetyl.” September 24, 2007.
Abstract 1
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H. OSHA Safety and Health Information Bulletin (SHIB), Respiratory Disease Among Employees in Microwave Popcorn Processing Plants, September 24, 2007.
I. OSHA Directive CPL 03-00-005, July 27, 2007, National Emphasis Program -Microwave Popcorn Processing Plants.
J. OSHA Safety and Health Information Bulletin (SHIB), Occupational Exposure to Flavoring Substances: Health Effects and Hazard Control (soon to be released).
K. OSHA Instruction CPL02-02-072, August 22, 2007, Rules of Agency Practice and Procedures Concerning OSHA Access to Employee Medical Records.
L. NIOSH Health Hazard Evaluation Report, HETA # 2000-0401-2991, Gilster-Mary Lee Corporation, Jasper, Missouri, January 2006.
M. NIOSH Health Hazard Evaluation Report, HETA # 2006-0303-3043, Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant, April 2007.
N. Morbidity and Morality Weekly Report (MMWR). Fixed Obstructive Lung Disease Among Workers in the Flavor- Manufacturing Industry---California, 2004-2007. MMWR Weekly 56(16);389-393, 2007
Cancellations: None.
State Impact: States with establishments that fall within the scope of this NEP are encouraged to participate in this national emphasis effort. State notice of intent regarding this direction is required. (See Paragraph VI.)
Action Offices: OSHA National, Regional and Area Offices, State Plan and State On-site Consultation Offices
Originating Office: Office of Health Enforcement
Abstract 2
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Contact: Directorate of Enforcement Programs Office of Health Enforcement 200 Constitution Avenue, NW Washington, DC 20210 202-693-2190
By and Under the Authority of
Jordan Barab Acting Assistant Secretary
Abstract 3
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Executive Summary
In January 2006, the National Institute for Occupational Safety and Health (NIOSH) released a final Health Hazard Evaluation Report on its investigation at a microwave popcorn production facility. Several employees from this facility were diagnosed with bronchiolitis obliterans, a severe obstructive lung disease. Following this investigation and the evaluation of lung function tests and air sampling results, NIOSH determined that inhalation exposure to butter-flavoring
chemicals presents a risk for occupational lung disease. In April 2007, the Centers for Disease Control and Prevention (CDC) reported in its Morbidity and Mortality Weekly Report (MMWR) seven additional cases of bronchiolitis obliterans in employees working in facilities where flavorings were manufactured. This instruction establishes an NEP to identify and reduce or eliminate hazards associated with employee exposure to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. Diacetyl is one of the most common compounds found during investigations of microwave popcorn and flavoring manufacturing facilities. This NEP provides guidance on targeting, inspection procedures, engineering controls, work practice controls, and compliance assistance.
Significant Changes
None. This Instruction describes a new enforcement initiative by the Occupational Safety and Health Administration.
Abstract 4
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Table of Contents
I. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III. References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
IV Cancellations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 V. Action Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 VI. Federal Program Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 VII. Expiration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 VIII. Significant Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IX. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 X. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 XI. National Emphasis Program Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 XII. Program Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 XIII. Outreach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 XIV. Inspection Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
XV. Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Appendix A: List of Flavorings Containing Diacetyl Appendix B: Health Care and Employer Form Letters Appendix C: Sample Hazard Alert Letter Appendix D: Guidelines for Air Sampling Appendix E: Description of Hazards at Flavoring Manufacturing Workplaces Appendix F: Compliance Safety and Health Officer (CSHO) Guidance for Employee Interviews Appendix G: Recommended Engineering and Work Practice Controls Appendix H: Safety & Health Precautions for Compliance Staff
Appendix I: Guidelines for Outreach Activities Appendix J: References
i
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I. Purpose. This Instruction describes a Federal program change which establishes policies and procedures for implementing an NEP to identify and reduce or eliminate hazards associated with exposure to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. This NEP does not apply to diacetyl that occurs naturally, nor does it apply to facilities that use flavoring chemicals in the manufacturing of food products.
II. Scope. This Instruction applies OSHA-wide.
III. References.
A. OSHA Instruction CPL 02-00-148, March 26, 2009, Field Operations Manual (FOM).
B. OSHA Notice 08-07 (CPL 02) – Site-Specific Targeting 2008 (SST-08) Effective, November 5, 2008.
C. OSHA Instruction CPL 02-02-038, March 20, 1998, Inspection
Procedures for the Hazard Communication Standard (HCS).
D. OSHA Instruction CPL 02-00-120, September 25, 1998, Inspection Procedures for the Respiratory Protection Standard.
E. OSHA Instruction CPL 02-00-025, January 4, 1995, Scheduling Systems for Programmed Inspections.
F. OSHA Memorandum for Regional Administrators, Area Directors, State Plan Designees, Consultation Program Managers, October 12, 2004, Subject: Popcorn/flavoring Establishment Assistance.
G. OSHA Publication “Hazard Communication Guidance for Diacetyl and Certain Food Flavorings Containing Diacetyl.” September 24, 2007.
H. OSHA Safety and Health Information Bulletin (SHIB), Respiratory Disease Among Employees in Microwave Popcorn Processing Plants, September 24, 2007.
I. OSHA Direction CPL 03-00-005, July 27, 2007, National Emphasis Program -Microwave Popcorn Processing Plants.
J. OSHA Safety and Health Information Bulletin (SHIB), Occupational
Exposure to Flavoring Substances: Health Effects and Hazard Control (soon to be released).
K. OSHA Instruction CPL02-02-072, August 22, 2007, Rules of Agency Practice and Procedures Concerning OSHA Access to Employee Medical Records. 1
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L. NIOSH Health Hazard Evaluation Report, HETA # 2000-0401-2991, Gilster-Mary Lee Corporation, Jasper, Missouri, January 2006.
M. NIOSH Health Hazard Evaluation Report, HETA # 2006-0303-3043, Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant, April 2007.
N. Morbidity and Mortality Weekly Report (MMWR): Fixed Obstructive Lung Disease Among Workers in the Flavor-Manufacturing Industry California, 2004-2007. April 27, 2007/56(16):389-393.
IV. Cancellations. None.
V. Action Offices.
A. Responsible Office Directorate of Enforcement Programs, Office of Health Enforcement.
B. Action Offices National, Regional and Area Offices; On-site Consultation Projects.
C. Information Offices OSHA National Offices.
VI. Federal Program Change/Notice of Intent Required. This Instruction describes Federal program change which establishes an NEP to identify and reduce or eliminate hazards associated with exposures to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. States where employees are exposed to such hazards in covered manufacturing facilities are encouraged to participate in this national emphasis effort. State notice of intent regarding this directive is required.
The State's notice of intent must indicate whether the State currently has or will
initiate an emphasis program and if so, whether the State's program will be identical to or different from the Federal Program. The State's implementation policies and procedures are expected to be at least as effective as those in this instruction and must be available for review. If the State's new or existing program differs from the Federal one, the State may either post its different emphasis program on its State plan Web site and provide the link to OSHA or provide a copy to OSHA with information on how the public may obtain a copy.
If the State adopts an identical emphasis program, it must provide the date of adoption to OSHA. OSHA will provide summary information about the State responses to this instruction on its Web site. States should code any inspection conducted under this emphasis program as directed in section XIV.G of this
Instruction.
2
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VII. Expiration. This Instruction will expire three (3) years from the date of issuance.
VIII. Significant Changes. There are no significant changes. This is a new program.
IX. Application. This Instruction applies to all establishments that manufacture
natural and or artificial food flavorings (as defined by the Food and Drug Administration (FDA) in 21 CFR 101.22: http://www.fda.gov/RegulatoryInformation) containing diacetyl. This NEP does not apply to naturally occurring diacetyl, nor does it apply to facilities that use flavoring chemicals in the manufacture of food products.
X. Background.
In 2000, the Missouri Department of Health and Senior Services (MDHSS) and NIOSH conducted an investigation of a microwave popcorn processing plant in Jasper, Missouri (Ref.2). Nine former employees had been diagnosed with a
rare, severe lung disease called bronchiolitis obliterans characterized by the finding of fixed airways obstruction on lung function tests (see next section “Fixed Airways Obstruction and Bronchiolitis Obliterans”). The employees reported similar symptoms, including progressive shortness of breath with exertion, persistent cough, and fatigue. The NIOSH investigation of the plant found that other employees working in the plant had symptoms and lung function abnormalities (fixed airways obstruction) similar to the original nine former employees (Ref.1,2,3). Diacetyl, a butter flavoring chemical, was the predominant chemical isolated from air samples in the facility and was used by NIOSH as a marker for exposure to volatile organic compounds (VOC) during the investigation (Ref.1). The investigation of the Jasper plant concluded that
there was a risk for occupational lung disease in employees with inhalation exposure to butter flavoring (Ref.2). Five of the nine original employees diagnosed with bronchiolitis obliterans were considered candidates for lung transplants (Ref.3). One of the ill employees died in 2006.
Since 2000, NIOSH has investigated a total of six microwave popcorn manufacturing facilities and has documented similar lung disease in employees (Ref.4,5). NIOSH researchers identified employees who had fixed airways obstruction in five of these plants, including employees with clinical findings consistent with bronchiolitis obliterans. The study of these six facilities concluded that employees exposed to butter flavorings were at risk of
developing occupational lung disease. The study also concluded that peak exposures to butter flavoring may be hazardous, even with low average exposures in the workplace (Ref.5).
Similar cases of occupational lung disease have been identified in employees working in flavoring manufacturing facilities in California. In 2004, an employee working in a flavoring manufacturing plant was diagnosed with 3
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bronchiolitis obliterans. The published case report stated that diacetyl was considered the cause of the employee's disease although exposure to other flavoring substances may also have contributed (Ref.6). In April 2006, another flavoring manufacturing employee in California was diagnosed with bronchiolitis obliterans, and five other employees were found to have lung disease characterized by severe fixed airways obstruction. Six of the seven employees identified in California were flavoring compounders who mixed and
handled flavoring substances including diacetyl. The other employee packaged powdered flavorings, some of which included diacetyl (Ref.6,7,8). In 2008 a case report was published describing an employee in a flavoring manufacturing plant in Britain who developed pulmonary symptoms and non-reversible lung function changes. The employee intermittently worked with diacetyl and developed symptoms of chest tightness and shortness of breath four months after an episode where he was exposed for several hours to a reportedly acute, high concentration of diacetyl. Per the study, the employee's symptoms and lung function did not improve even after removal from the workplace (Ref.9).
Cases of lung disease have also been reported among employees who worked in
a chemical production plant that produced diacetyl for the flavoring industry.
This group of employees was exposed to diacetyl, as well as acetoin (a chemical structurally-related to diacetyl), acetic acid, acetaldehyde, chlorine and ammonia. The study identified at least 4 cases of bronchiolitis obliterans among 206 employees that were exposed during the period of diacetyl production from 1960 - 2003. The authors concluded that exposure to an agent during diacetyl production appeared to be responsible for the cases of bronchiolitis obliterans that were diagnosed in this group of employees (Ref.10).
The occurrence of severe fixed airways obstruction, including the rare lung disease bronchiolitis obliterans, demonstrates the potential risk to employees
from uncontrolled airborne exposures to flavoring substances (Ref.4, 5). As of April 2007, an additional 22 flavoring manufacturing employees in California were undergoing medical evaluations due to abnormalities on lung function tests. Information from 28 flavoring manufacturing plants in California is currently being evaluated to gain a better understanding of work-related risk factors for development of occupational lung disease (Ref.6). NIOSH has also received reports of cases of bronchiolitis obliterans in flavoring manufacturing facilities in Ohio, New Jersey and in Maryland (after a dimethylphenol spill) (Ref.6,11,12).
Flavorings are complex mixtures of chemicals and the inhalational toxicities of many of these substances have not been evaluated (Ref.5). Other volatile
flavoring substances, in addition to diacetyl, were found in air samples during NIOSH investigations of microwave popcorn plants and flavoring manufacturing facilities. It is possible that some of these substances may have a role in the development of the lung disease found in these facilities. Scientists from NIOSH, National Jewish Medical Center, the National Institute for Environmental Health Studies (NIEHS), and other researchers are currently 4
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investigating the role of various flavoring substances in the development of fixed airways obstruction and bronchiolitis obliterans.
Fixed Airways Obstruction and Bronchiolitis Obliterans
The lung disease identified in the NIOSH investigations of popcorn and flavoring manufacturing plants is usually characterized by findings of fixed
airways obstruction on spirometry (a common type of pulmonary function test, or PFT). Airways obstruction is diagnosed when the person tested has difficulty blowing air out of the lungs. Fixed airways obstruction means that spirometry shows little or no improvement in lung function after administration of medication (i.e., bronchodilators) (Ref.2,4). In addition to fixed airways obstruction, a few employees in both the microwave popcorn and flavoring manufacturing industries have demonstrated lung function tests consistent with restriction, which is a decreased ability to expand the lungs (Ref.2,4,8).
The symptoms seen in these employees include cough, fatigue, shortness of breath with exertion, and nasal and sinus irritation and inflammation.
Symptoms generally do not improve when employees go home for the weekend or go on vacation (Ref.1,2). Symptoms usually have a gradual onset, but in some cases severe symptoms have occurred suddenly with rapid progression of lung disease (Ref.4,8). Early lung function decline can have minimal or no symptoms (Ref.4). For example, during a NIOSH investigation of a flavoring facility, one employee had a very large decline in lung function over a 4.5-month period. This employee did not report any symptoms despite his loss of lung function (Ref.8).
Bronchiolitis obliterans is a rare, potentially life-threatening lung disease characterized by cough, shortness of breath with exertion, and spirometry findings of fixed airways obstruction (Ref.13). Constrictive bronchiolitis
obliterans occurs when the smallest airways of the lung become inflamed and scarred, resulting in thickening and narrowing of the airways. Established occupational risk factors for development of bronchiolitis obliterans include inhalation of toxic fumes, grain dusts, mineral dusts, and irritant gases (Ref.4,14,15). The diagnosis of bronchiolitis obliterans is usually confirmed by additional medical tests, including paired inspiratory and expiratory high-resolution computerized tomography scans (HRCT).
The initial signs and symptoms of fixed airways obstruction including bronchiolitis obliterans may be subtle. Affected employees may be misdiagnosed with other lung diseases such as asthma or chronic obstructive
pulmonary disease (Ref.16). Even when diagnosed correctly, employees with fixed airways obstruction including bronchiolitis obliterans have not had improved lung function with treatment (e.g., corticosteroid medications). While a few employees have noticed gradual improvement in their cough several years after removal from exposure, their pulmonary function has never improved and they continue to have shortness of breath with exertion. As noted earlier, some 5
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of these employees have developed such severe, disabling lung disease that they have been placed on lung transplant waiting lists (Ref.3).
Flavorings
Flavorings can be either natural or man-made substances. Some flavorings are simple and made up of only one chemical, but many others are complex
mixtures of several substances. When properly compounded, these mixtures provide the fragrance and taste perception of a specific flavor, such as butter or strawberry. There are more than 2,000 substances used to manufacture flavorings (Ref.17). The Food and Drug Administration (FDA) regulates flavorings for safety when eaten, but it does not require testing by other routes of exposure, such as inhalation.
Occupational exposure to flavoring substances usually occurs via inhalation or skin contact, not the oral route of exposure evaluated by the FDA. Appendix D of this NEP entitled Guidelines for Air Sampling identifies flavoring substances, some of which have OSHA permissible exposure limits (PELs). Most of these substances also have industry applications other than for use as flavoring. Most
of the substances listed in Appendix D are respiratory tract irritants, and some are also associated with potentially severe respiratory illnesses such as asthma and pulmonary edema (fluid in the lungs).
The Flavor and Extract Manufacturers Association (FEMA), a trade association for the flavorings industry, has identified a number of flavoring substances for their potential to pose respiratory hazards in flavoring manufacturing workplaces. FEMA has identified 34 “high priority” flavoring substances that may pose a respiratory hazard in the workplace and which "merit a higher degree of attention" including consideration of work practice controls, engineering controls, and personal protective equipment (PPE). FEMA also
identified 48 "low priority" substances which may pose a respiratory hazard depending on the circumstances of exposure or use, such as when used in very large volumes or when heated or blended in a manner resulting in high air concentrations. In these situations, more attention is recommended regarding workplace exposure control and safety measures (Ref.17). Diacetyl, acetoin, and acetaldehyde are some examples of FEMA high priority substances found in flavorings analyzed during NIOSH investigations of microwave popcorn and flavoring manufacturing facilities.
Diacetyl
Diacetyl (Ref.2,3-butanedione), a diketone, is used to produce a butter flavor in foods and occurs naturally in some foods, such as dairy products, wine, and beer (Ref.17,18,19). NIOSH identified diacetyl as one of the most common VOCs found during investigations of microwave popcorn and flavoring manufacturing facilities. It may be found in other types of flavorings in addition to butter flavorings. For example, diacetyl was used in the production of a vanilla 6
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flavoring powder during a NIOSH investigation of a California flavoring manufacturing facility (Ref.7). Diacetyl reacts with the amino acid arginine (Ref.20) and inhibits enzymes containing arginine that are important for protecting cells from oxidative damage (Ref.21, 22). Diacetyl does not have an OSHA PEL or a NIOSH Recommended Exposure Level (REL), although OSHA has initiated rulemaking for flavorings containing diacetyl pursuant to its authority under Section 6(b) of the Occupational Safety and
Health Act.
Diacetyl has been detected and used as a marker for flavoring exposure in NIOSH investigations in microwave popcorn and flavoring manufacturing facilities where cases of fixed obstructive lung disease, including bronchiolitis obliterans, have been diagnosed (Ref.5, 7). One NIOSH investigation of a California flavoring manufacturing plant found three employees with lung disease consistent with bronchiolitis obliterans. All three employees were involved in the production of powdered flavorings. The production room had the highest time-weighted average diacetyl concentrations. All other areas of the plant had lower levels. The highest levels of diacetyl were measured during
the production of powdered flavorings. The highest peak diacetyl concentrations were measured when employees poured liquid diacetyl into the ribbon blender, when a butter flavoring powder (finished product) was dispensed into boxes, and during blender cleaning operations (Ref.7).
In some facilities, flavoring manufacturers have replaced diacetyl with alternative flavoring chemicals. Some manufacturers have substituted acetyl propionyl (2,3 pentanedione) and diacetyl trimer in formulating butter and other flavorings. However, these substances have not been tested and it is unclear whether they pose health risks. There is specific concern that diacetyl may be released from diacetyl trimer under certain manufacturing conditions that
involve heat and the presence of water as well as in the moist environment of the respiratory track after inhalation.
Additional Flavoring Substances Identified in NIOSH Investigations
In addition to diacetyl, over 150 VOCs were identified when emissions from 40 samples of butter flavorings from six microwave popcorn facilities were analyzed (Ref.26). Acetoin (acetyl methyl carbinol) is a ketone that has been consistently found during investigations of microwave popcorn manufacturing plants. NIOSH also identified acetoin as a predominant chemical in the production room of a California flavoring manufacturing plant (Ref.7). Acetoin was also found in a diacetyl chemical manufacturing facility where four
employees developed bronchiolitis obliterans (Ref.10). Acetoin is very similar in chemical structure to diacetyl. It is anticipated that some diacetyl may be metabolized to acetoin in humans. The National Toxicology Program is planning inhalation toxicology studies on acetoin as part of a testing nomination for artificial butter flavoring and its ingredients (Ref.27). Acetoin does not have an OSHA PEL. It is irritating to the skin, eyes, mucous membranes, and 7
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respiratory tract (Ref.2).
Furfural and acetic acid were also identified during the analysis of VOCs emitted from certain butter flavorings (Ref.26). Studies of rats exposed to furfural 6 hours/day, 5 days/week for 28 days reported changes in nasal tissue at concentrations as low as OSHA’s PEL of 5 parts per million (ppm) for furfural (Ref.28). In an earlier study, rats exposed to concentrations of 38 ppm furfural
for one hour/day, 5 days/week for 30 days had tissue changes in the lungs around the bronchioles and small blood vessels (Ref.29).
The OSHA PEL for acetic acid is 10 ppm. Acetic acid is irritating to the skin, eyes and the respiratory tract. It was detected in the mixing room of the Jasper microwave popcorn manufacturing plant (Ref.2). NIOSH also reported that acetic acid was a predominant airborne chemical in the production room of a California flavoring manufacturing plant (Ref.7).
Another common flavoring substance, acetaldehyde, has been identified in air samples in several microwave production facilities. The OSHA PEL for
acetaldehyde is 200 ppm (Ref.1, 26). Acetaldehyde is highly irritating to the eyes, nose, and throat (Ref.2). Occupational exposure to acetaldehyde was reported in a flavor manufacturing facility where five employees developed fixed airways obstruction. One of these employees reported developing respiratory symptoms (shortness of breath and coughing) after pouring acetaldehyde into a flavoring mixture. Two months later the employee developed shortness of breath with exertion and lung function tests indicated that the employee had fixed airways obstruction (Ref.4).
In addition to VOCs, respirable dust may be produced from the handling of powdered flavoring formulations or spices. Inhalation of these respirable
particles (i.e., particles less than 10 microns ( m) in diameter) may result in flavoring exposure directly to the small airways of the lung (Ref.26). Exposure to garlic dust or aniseed dust has been associated with the development of occupational asthma (Ref.30,31). Individual case reports have described other lung diseases such as bronchiolitis obliterans organizing pneumonia after exposure to spice dust in a potato chip factory, and interstitial pneumonia after exposure to curry and pepper dust in a curry sauce factory (Ref.32,33).
Currently, OSHA is in the process of developing a diacetyl standard. OSHA does not have specific PELs for many of the substances used in the flavoring industry, and NIOSH has not recommended any exposure levels. However, NIOSH has recommended that facilities that use or manufacture flavorings
implement engineering and work practice control measures to minimize employee exposure during working conditions that may place employees at risk (Ref.3). Specifically NIOSH has recommended that the use of respiratory protection be mandatory for all mixers and employees entering the mixing room until such time as the production process is reengineered or enclosed to eliminate exposures to flavoring chemicals (Ref.7). 8
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XI. National Emphasis Program Goals.
A. To minimize and/or eliminate employee exposure to the hazards associated with food flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. Reduction and/or elimination of these exposures will help to prevent the occurrence of skin and eye injuries as well as occupational lung disease and illness, including fixed
airways obstruction and bronchiolitis obliterans, restriction, and other pulmonary abnormalities.
B. To accomplish this goal, OSHA will implement a combined effort that includes inspection targeting and outreach to employers and employees.
C. Inspections will be directed to the facilities described in section XII below and other establishments known to manufacture food flavorings containing diacetyl.
XII. Program Procedures.
D. Site Selection.
- Targeting Sources.
a. Inspections conducted under this NEP will focus on facilities where employees are manufacturing food flavorings which contain diacetyl for use in foods, beverages, and other consumer products.
b. Eighty three (83) facilities in Federal enforcement states
have been identified as facilities that manufacture food flavorings containing diacetyl. A list of these facilities is posted on the Directorate of Enforcement Programs (DEP) intranet web site. An additional number of facilities in State Plan States are also posted.
NOTE: This list is for internal scheduling purposes only and shall not be released to the public.
c. Sites not included on the DEP Intranet list, but that are known to the Area Office to be manufacturing food
flavorings containing diacetyl, shall be added to the inspection targeting list for that Area Office.
- Inspection Scheduling.
a. All 83 facilities posted on the Intranet must be inspected.
Area Offices must inspect at least three facilities per year 9
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under this NEP until they have inspected all of the facilities on the DEP list that fall within their jurisdiction, as well as any facilities they know to be manufacturing food flavorings containing diacetyl.
b. For reporting purposes, all enforcement inspections under this NEP will be reported as “Health” inspections on the
IMIS. Any establishment previously visited, but not inspected, under the Microwave Popcorn Manufacturing NEP may be revisited and inspected under this NEP.
- Deletions.
An facility that has received an inspection where OSHA evaluated employee exposures to food flavoring chemicals within the two (2) years prior to the effective date of this Directive shall be deleted from the list if OSHA has documentation that no hazardous exposures were identified or that the employer
instituted effective engineering and work practice controls and provided respirators (where necessary) and appropriate personal protective equipment.
B. Complaints and Referrals.
Inspections at facilities that manufacture food flavorings containing diacetyl that result from complaints or referrals alleging employee exposure to safety or health hazards other than those addressed by this NEP shall be expanded to address the hazards targeted by this NEP. For further guidance, CSHOs
should refer to the FOM.
C. Programmed Inspections.
Some establishments covered by this NEP may be selected for inspection under the Site-Specific Targeting (SST) plan or under one or more other OSHA initiatives (NEPs or Local Emphasis Programs (LEPs)). This NEP shall be run concurrently with the SST plan and any other NEPs or LEPs. This NEP has equal priority as the SST plan.
Whenever an establishment to be inspected under this NEP is also scheduled for inspection on the current cycle of the SST plan, the inspections may be scheduled at the same time. CSHOs shall use all IMIS codes applicable for the inspection. The employer’s Data Universal Numbering System (DUNS) number must also be recorded for each inspection.
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In cases where an establishment is scheduled for inspection under both the SST and this NEP, an inspection addressing the issues targeted by the NEP must be conducted even if all CSHO-calculated days away, restricted or transferred (DART) rates for the establishment are found to be below the SST inspection thresholds.
B. Expanding Scope of Inspection.
Inspections under this NEP shall normally be limited to evaluating employee exposure to the hazards described in this Instruction, but the CSHO may expand the scope of the inspection if other safety and health hazards or violations are observed or the facility is covered under another LEP or NEP, such as amputations.
XIII. Outreach.
OSHA will not begin enforcement activity until at least 60 days after the
effective date of this NEP. During that time, and for the duration of this NEP, the following outreach efforts will be conducted.
C. The OSHA Training Institute (OTI) will develop OSHA training and outreach programs to support enforcement efforts under this NEP.
OTI has posted a Diacetyl webcast at: https://learninglink.dol.gov # 0020.
B. The Office of Communications will draft news releases to national news organizations.
C. The Regional Offices should consult with the States to ensure that they are addressing flavoring related problems during their consultation visits.
D. Guidelines for Area Office outreach activities are provided in Appendix I.
Suggested outreach activities include
- Letters and news releases to local news organizations and trade magazines disseminating information about this NEP. Letters should be sent alerting employers to this NEP, the upcoming Safety and Health Information Bulletin (SHIB) on flavorings (when it is complete), and NIOSH’s most recent reports:
(cid:183) The 2007 Report - NIOSH Kanwal: Report on Severe
Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2006-0303-3043, April 2007
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(cid:183) The 2006 Report - NIOSH: Gilster-Mary Lee Corporation - Jasper, Missouri. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2000-0401-2991, January 2006.
The SHIB, when it becomes available, will provide employers with information about the chemicals used in flavoring manufacturing, the potential health effects associated with those chemicals, and the recommended workplace exposure controls that are available. Appendix B contains a sample form letter which the Area Office can utilize to transmit information to employers.
- If not contacted previously, local hospitals, occupational health clinics, and local occupational physicians should be alerted by mail about the potential hazards associated with occupational exposure to flavoring chemicals. Appendix B contains a form
letter that can be sent to healthcare providers to alert them of the potential for lung disease amongst employees exposed to diacetyl and other flavoring chemicals during the course of their employment.
-
If a lung transplant facility exists in an Area Office’s jurisdiction, they should be contacted and advised to inquire about their patients’ occupational history. The facility should also be provided with information regarding this NEP.
-
Compliance Assistance Specialists (CAS) should conduct
outreach activities such as seminars and informational sessions for the health care sector and employer and employee groups.
- Temporary Employment Agencies may be contacted to alert them to this NEP so that they can provide appropriate information to their employees and clients who may be assigning employees to establishments covered by this NEP.
XIV. Inspection Procedures.
This section outlines procedures for conducting inspections and preparing
citations. For further guidance, CSHOs should consult the OSHA directives, appendices, and other references provided herein.
Appendix E describes some of the hazardous conditions that may be encountered at facilities that manufacture food flavorings containing diacetyl.
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A. Opening Conference.
- During the opening conference, the CSHO shall initially confirm that the employer manufactures food flavorings containing diacetyl. Some employers may not be aware of the potential for workplace diacetyl exposures. Therefore, if the employer reports that it does not manufacture food flavorings containing diacetyl,
CSHOs should ask the following additional questions
(cid:183) Ask if the employer manufactures butter distillate, butter starter distillate or natural butter starter distillate. (These are all common terms for a diacetyl-containing substance that not everyone recognizes as containing diacetyl.)
(cid:183) Ask if the employer manufactures dairy flavorings (including butter, cheese, sour cream, and yogurt flavors), “brown” flavorings (such as coffee, caramel, chocolate and
butterscotch flavors), or any of a variety of other flavors that may contain diacetyl (including rum, honey, and strawberry flavors). See Appendix A for a more complete list of flavors that may contain diacetyl.
- CSHOs shall explain the goals of this NEP to the employer and provide copies of:
(cid:183) The Hazard Communication Guidance Document for Diacetyl and Food Flavorings
(cid:183) The 2007 NIOSH Report (cid:183) The 2006 NIOSH Report (cid:183) The SHIB on flavorings (when it becomes available) Centers for Disease Control and Prevention. Fixed obstructive lung disease among workers in the flavoring manufacturing industry --- California, 2004 - 2007.
MMWR Weekly 56(16): 389-393, 2007. (CDC MMWR)
NOTE: CSHOs may choose to provide copies of these documents to the employer for copying or inform the employer
that copies can be accessed at: http://www.osha.gov/dsg/guidance/diacetyl-guidance.html, http://www.cdc.gov/niosh/hhe/default.html, http://www.cdc.gov/niosh/topics/flavorings/hhe-eval.html and http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5616a2.htm
- CSHOs shall request copies of material safety data sheets (MSDSs) for flavoring chemicals to which employees are exposed under normal operating conditions at the facility.
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- CSHOs shall also request information on any hazard analyses performed at the facility for the following:
a. 29 CFR §1910.132(d): Hazard assessment and equipment
selection. OSHA’s Personal Protective Equipment (PPE) standards require employers to assess their workplaces to determine if hazards are present, or are likely to be present, which necessitate the use of PPE (29 CFR §1910.132(d)(1)). If such hazards are present or are likely to be present (as determined in part by the information from the MSDS), employers must ensure that employees use the appropriate PPE for the hazard(s) in question (29 CFR §1910.132(d)(1)(i)). The employer is responsible for both the quality of the hazard assessment and the adequacy of the PPE selected.
b. 29 CFR §1910.134(d): Selection of Respirators. If employees are exposed to flavoring chemicals for which MSDSs show inhalation hazard potential, the employer must conduct the evaluation required by 29 CFR §1910.134(d)(1)(iii).
The hazard evaluation requirement is performance-oriented, and a variety of estimation techniques may be used to characterize employee exposures depending upon the nature of the chemical products, processes, operating environment, and other factors.
The employer must assess the nature and magnitude of the hazard relative to the conditions of use in its workplace,
considering both normal operating conditions and reasonably foreseeable emergencies.
c. 29 CFR §1910.1200(d): Hazard determination. OSHA’s Hazard Communication standard (HCS) provides that chemical manufacturers must evaluate chemicals produced in their workplaces to determine if they are hazardous. Other employers can either rely on the hazard evaluation performed by the manufacturer or conduct their own hazard evaluation (29 CFR §1910.1200(d)(1), (2) and (3)). In conducting a hazard evaluation, the employer must consider the available scientific
evidence concerning that chemical.
NOTE: If the CSHO determines during the opening conference that the employer does not manufacture food flavoring containing diacetyl, he or she will exit the facility with no inspection conducted. But if the establishment is targeted under another LEP or NEP, the CSHO shall proceed with an inspection under the other LEP or NEP. 14
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B. Walk Around and Records Review.
- MSDS. CSHOs must thoroughly review a representative sample of MSDSs for the flavoring chemicals to which employees are exposed at the facility to ensure that they are in compliance with the requirements of 29 CFR §1910.1200(g). If upon reviewing an MSDS there is a
question regarding possible deficiencies in an upstream chemical manufacturer’s hazard determination, a referral to another Area Office may be necessary pursuant to OSHA Instruction CPL 02-02-038-Inspection Procedures for the Hazard Communication Standard.
a. Review the health effects and personal protective equipment sections of the MSDSs to determine whether hazard information adequately addresses respiratory, eye, and dermal hazards.
b. For additional information, CSHOs should refer to OSHA’s “Hazard Communication Guidance for Diacetyl and Food
Flavorings Containing Diacetyl,” http://www.osha.gov/dsg/guidance/diacetyl-guidance.html and the SHIB.
- Injury/Illness Records.
a. CSHOs must review the employer’s injury and illness records to identify the following types of entries:
(cid:183) Log entries for respiratory issues such as: bronchiolitis obliterans, fixed airways obstruction, airways
obstruction, breathing or respiratory restriction, chronic bronchitis, asthma, emphysema, pneumonia, toxic effects, fume/vapor respiratory inflammation, abnormal lung function and other similar entries that could be associated with exposure to flavoring chemicals.
NOTE: Physicians unfamiliar with bronchiolitis obliterans – a rare disease – may incorrectly diagnose an employee’s illness. Accordingly, CSHOs should investigate and follow up on entries such as asthma, respiratory abnormalities, and toxic effects. If there is
uncertainty about whether a recorded injury or illness may be associated with exposure to flavoring chemicals, consult with the Directorate of Technical Support and Emergency Management’s Office of Occupational Medicine (OOM) as soon as possible for guidance.
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(cid:183) Log entries for skin or eye injuries involving exposure to flavoring chemicals.
b. CSHOs shall follow up on entries identified per paragraph XIV.B.2.a. by interviewing employees in accordance with paragraph XIV.B.2.c. In addition, CSHOs should determine if
any medical surveillance (i.e. spirometry testing) is conducted by the employer. If so, document the frequency of testing and the type of medical evaluation performed. If spirometry is performed, contact OOM to discuss medical review of medical surveillance and spirometry records.
c. CSHOs shall interview all employees whose names are recorded on the logs in entries identified in accordance with paragraph XIV.B.2.a. To identify other cases of respiratory illness which may not have been recorded, CSHOs should interview employees working in mixing, packaging, quality control, and
other areas such as maintenance and warehousing. These employees are likely to be exposed to flavoring chemicals.
Appendix F contains an employee questionnaire to assist with these interviews.
d. Through employee interviews, CSHOs should attempt to obtain contact information for some employees no longer working at the facility and attempt to interview them regarding any respiratory health effects they may have developed while working with food flavorings.
- Medical Access Orders. Based on information obtained from illness/injury records and interviews, CSHOs may need to review additional employee medical information as per paragraph XIV.B.2.b above. When accessing employee medical information, CSHOs should follow the procedures in 29 CFR §1913.10 and obtain a written medical access order in accordance with CPL 02-02-072-Rules of Agency Practice and Procedures concerning OSHA Access to Employee Medical Records. CSHOs may also consider obtaining specific written consent from the employee pursuant to 29 CFR §1910.1020(e)(2)(ii). In such cases CSHOs should ensure that the agency or an agency employee is listed on the consent form as the designated representative
to receive the information.
- Production Process Evaluation. CSHOs shall request and review the employer’s production and processing records. Areas of particular concern for hazards covered by this NEP include:
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(cid:183) Mixing areas where flavoring chemicals are mixed, poured, heated and added to heated oil. (cid:183) Areas where flavoring chemicals are weighed, measured, or sampled. (cid:183) Areas where employees engage in research, development
and quality assurance activities. (cid:183) Locations where flavoring chemicals are transferred into containers and blenders. (cid:183) Places where packages, boxes and containers are filled with blended flavoring product. (cid:183) Areas where spray drying takes place.
a. CSHOs should document the types and quantities of food flavorings that are manufactured by the employer.
b. CSHOs should document whether the employer heats any flavoring chemicals during processing and, if so, to what temperature. Heating is particularly likely to increase exposure to diacetyl, especially if conducted in open containers.
c. CSHOs should evaluate and document how frequently flavoring chemicals are directly handled by employees (e.g., measuring, weighing, pouring, mixing, transferring, etc.) and the extent to which engineering controls, work practices, and protective equipment, if any, are implemented during these operations.
d. CSHOs should evaluate employees’ respirator usage, if any, and request a copy of the employer’s respiratory protection program.
e. CSHOs should evaluate and document process parameters such as: (cid:183) Temperature controls (cid:183) Volume of material (cid:183) Closed or open process
(cid:183) Open material transfer information (cid:183) Ventilation readings (cid:183) Distance to breathing zone (cid:183) Length of exposure on short term operations (cid:183) Other parameters as outlined in the engineering controls section of the Hazard Alert Letter attached at Appendix C and in the recommended engineering controls and workplace practices at Appendix G.
f. CSHOs should take photos of processes sampled before and after any controls are implemented.
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- Exposure Monitoring.
CSHOs should conduct full-shift personal air monitoring and short-term personal air monitoring for diacetyl and/or other flavoring chemicals to which employees are exposed. The Salt Lake Technical Center (SLTC) has developed two validated methods for the simultaneous analysis of diacetyl and acetoin. OSHA Method-1012 allows for the analysis at
levels of about 50 parts-per-billion, and OSHA Method-1013 allows for the analysis of levels about 500 parts-per-billion.
NOTE: When the specified sampling and analytical procedures are followed, up to 80% relative humidity has no effect on the sample results. The samples remain stable for at least two weeks before analysis.
a. Air monitoring should generally be conducted on employees who work in the following areas of the facility:
(cid:183) Rooms where flavoring mixing and holding tanks are located; (cid:183) Quality assurance and quality control laboratories; (cid:183) Spray-dry flavor manufacturing processes; (cid:183) Weighing and pouring stations; (cid:183) Packaging area(s); and, (cid:183) During cleaning and maintenance activities.
In addition, any employees working in any areas of the facility who exhibit symptoms that can be attributed to exposure to flavoring chemicals should be monitored. CSHOs should seek assistance from OOM for questions about whether identified health effects could be associated with exposures to the flavoring chemicals documented at the worksite.
b. CSHOs should be aware that sampling tubes must not be changed in areas where food and food flavoring products are processed. Any breakage of tubes in these areas can result in the recall of these food products per FDA regulations. Appendix D
provides more sampling information.
C. Citation Guidance.
- Citations for Hazardous Diacetyl Exposures Under The General Duty Clause (§5(a)(1) of the OSH Act):
a. If the CSHO documents exposure(s) to diacetyl and/or flavoring substances containing diacetyl, and exposed employees have
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experienced or are experiencing documented instances of bronchiolitis obliterans, obstruction of airways, lung-function abnormalities, or other lung disease, the Area Office must notify their Regional Office who will then contact DEP and OOM for an evaluation of whether a 5(a)(1) citation is appropriate.
NOTE: A Hazard Alert Letter (HAL) may be issued when the
CSHO has evidence that exposures to food flavoring chemicals (other than diacetyl) that are not listed in Table Z-1, Z-2 or Z-3 of 29 CFR § 1910.1000 are resulting in employee health effects.
The HAL should recommend specific actions that would assist in the prevention and reduction of illnesses and include a notification that a follow-up inspection may be conducted. A sample HAL is included in Appendix C. Whenever a HAL is issued, a copy must be forwarded to DEP’s Office of Health Enforcement (OHE). For guidance on writing citations for overexposures to chemicals listed in Table Z-1, Z-2 or Z-3 of 29 CFR § 1910.1000 see XIV.C.2 below.
b. Sample Alleged Violation Description (AVD) for citing employee exposures to diacetyl or food flavoring chemicals containing diacetyl.
NOTE: Sample AVD language is presented as a model to assist CSHOs in developing citations. Care should be taken to tailor citations to reflect the conditions found at particular facilities and to give notice to cited establishments of the violative conduct.
Section 5(a)(1) of the Occupational Safety and Health Act: The employer did not furnish to each of his employees employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were required to perform tasks that exposed them to the hazard of severe lung disease and obstruction of lung airways from inhalation of diacetyl and/or food flavoring substances containing diacetyl.
(a) (LOCATION)(DATE)(IDENTIFY SPECIFIC OPERATION/TASK(S) AND
DEPARTMENTS, DESCRIBE CONDITIONS, INCLUDING EXPOSURE LEVELS). An evaluation of this operation/task(s) indicated that employees required to perform this task were exposed to a hazard which caused, or was likely to cause, severe lung disease and obstruction of lung airways.
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Abatement
Feasible and effective abatement methods for reducing hazards associated with exposure to diacetyl and/or food flavoring substances containing diacetyl include, but are not limited to, the implementation and use of engineering and work practice controls.
In addition, employee illnesses may be reduced by identifying
exposed employees, developing a medical surveillance program to include spirometry, using medical questionnaires to identify employees with respiratory symptoms of lung dysfunction and airway obstruction, and referring symptomatic employees to physicians who specialize in occupational or pulmonary medicine for appropriate medical treatment.
NOTE: CSHOs should consult Appendix G. Additional resources include NIOSH Health Hazard Evaluation Report: “Report on Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant, Carmi Flavor and Fragrance Co., Inc
Commerce California by R. Kanwal and G. Kullman (HETA) 2006-0303-3043, April 2007” for further information on control measures.
- OSHA PELs
If there are documented exposures to a flavoring chemical in excess of an OSHA PEL, ceiling limit, or short-term exposure limit listed in Table Z-1, Z-2 and Z-3 of 29 CFR §1910.1000, the applicable sections of that standard shall be cited. Refer to Appendix D for a list of potentially applicable exposure limits.
- Respirator Standard
a. If there are respiratory hazards present at the worksite and the employer failed to conduct an initial respiratory hazard evaluation, 29 CFR §1910.134(d)(1)(iii) shall be cited.
b. Where the employer requires the use of respirators, but fails to comply with a requirement in the Respirator standard, the appropriate paragraph(s) of 29 CFR §1910.134 shall be cited. CSHOs should refer to CPL 02-00-120, Inspection
Procedures for the Respiratory Protection Standard for detailed inspection and citation guidance.
c. When appropriate, the respirator standard may be cited in conjunction with the General Duty Clause or 29 CFR § 1910.1000 (Air Contaminants).
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- PPE Standards
Where flavoring chemicals have irritant properties, employees’ eyes and/or skin are potentially exposed, and the employer is not ensuring the use of appropriate protective equipment, the applicable paragraph(s) of OSHA’s PPE standards shall be cited. (See, e.g., 29 CFR §§1910.132, .133, .138).
a. Chemical goggles or other appropriate eye protection must be used when there is a potential for splash or vapor exposure to a substance that is likely to cause injury to the eye.
b. Chemical-resistant gloves, sleeves, or other appropriate protection for exposed skin must be used when employees are handling flavoring chemicals that can cause dermal injury.
CSHOs should consult MSDSs for the appropriate gloves.
c. If the employer did not provide training, including
information about when and how to use appropriate PPE, the appropriate paragraph(s) in 29 CFR §1910.132(f) shall be cited.
- Hazard Communication
a. If the employer does not provide required hazard communication training to employees who may be exposed to hazardous flavoring chemicals, the appropriate paragraph(s) in 29 CFR §1910.1200(h)(3) shall be cited.
b. IMSDSs are not readily accessible to employees, 29 CFR §1910.1200(g)(8) shall be cited.
c. If all containers containing hazardous flavoring chemicals, including those used for mixing process chemicals, are not adequately labeled, the appropriate paragraph(s) in 29 CFR § 1910.1200(f) shall be cited. Although some flavoring chemicals may be exempt from the hazard communication standard’s labeling requirements due to coverage under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.), even those chemicals must be labeled once they are
transferred into in-plant containers.
NOTE: No labeling is required for portable containers into which the flavoring chemicals are transferred from labeled containers and which are intended to be used immediately by the employee who performed the transfer.
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Citation Guidance: For additional information, CSHOs should refer to OSHA’s “Hazard Communication Guidance for Diacetyl and Food Flavorings containing Diacetyl.” (http://www.osha.gov/dsg/guidance/diacetyl-guidance.html) Additional inspection and citation guidance, including guidance on how to address inadequate MSDSs, is contained in OSHA Instruction CPL02-02-038-Inspection Procedures for the HCS.
- Exposure and Medical Records.
a. CSHOs should interview employees to determine whether they understand their rights to review their medical and exposure records, as well as their rights regarding the confidentiality of such records.
b. If a review of the employer’s recordkeeping program reveals that the employer is not collecting and recording required information, the appropriate paragraph(s) in 29
CFR Part 1904 and/or 29 CFR § 1910.1020 shall be cited.
c. CSHOs should also refer to CPL 02-02-072-Rules of Agency Practice and Procedures Concerning OSHA Access to Employee Medical Records.
d. If the employer does not follow OSHA requirements for ensuring the confidentiality of employee medical records, the applicable section(s) of 29 CFR Part 1904, 29 CFR § 1913.10, and/or 29 CFR § 1910.1020 shall be cited.
- Flammable and combustible liquids.
Diacetyl is highly flammable as both liquid and vapor.
Other food flavoring chemicals may also be flammable.
Therefore, during the course of an investigation under this NEP, attention should be paid to the handling and storage of these chemicals. The CSHO should investigate whether flammables are kept in closed containers.
Citation Guidance: Violations of 29 CFR § 1910.106(e) should be cited where appropriate.
- Confined Spaces.
Some facilities covered by this NEP may use large containers and tanks for storage and mixing. CSHOs should determine whether any confined spaces exist and evaluate the employer’s procedures for employee entry 22
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when cleaning and maintaining this equipment.
Citation Guidance: Violations of 29 CFR § 1910.146 should be cited where appropriate. In addition, compressed air may not be used for cleaning except when reduced to less than 30 p.s.i and used with certain precautions. See 29 CFR § 1910.242(b).
D. Follow-up Inspections.
Where citations are issued under Section 5(a)(1) or 29 CFR § 1910.1000 for exposures to diacetyl or other food flavoring chemicals, follow-up site visits must be conducted to determine whether the employer has implemented appropriate abatement measures, including engineering controls or work practices, and whether respirators and other appropriate PPE are being provided where necessary.
E. Program Evaluation.
This NEP will be evaluated using data collected from case files and follow-up site visit reports. Information on the effectiveness of the employer’s abatement of hazardous exposures must be noted in the case file, including the types of ventilation and flow rates utilized to reduce exposure(s), and the use of PPE and the initiation of any medical surveillance programs. The results of this evaluation shall be transmitted to DEP within one year of the effective date of this NEP.
F. Coordination.
National Office: This NEP has been developed by OHE. All questions and comments should be directed to OHE. OHE will coordinate with OOM for assistance as needed.
G. IMIS Coding Instructions. The instruction below is for recording inspections under this NEP. All inspections conducted under this NEP will be “Health” inspections and should be coded as such. When an inspection under this NEP is conducted in conjunction with an SST inspection, the OSHA-1 Forms must be marked as “programmed planned” in item 24, and in item 21, Inspection Category must be recorded as “H.” In addition, the “NEP” value of “SSTARG08” will be recorded in Item 25d along with the
NEP code "FLAVRING." If during an SST inspection (or other safety-related inspections) hazards associated with exposure to flavoring ingredients or substances are observed, the NEP code “FLAVRING” should be recorded.
This new "FLAVRING” code applies to the following enforcement forms: OSHA-1, OSHA-7, OSHA-36, OSHA-90 and OSHA-55. 23
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Consultation request/visit forms are to be completed with the NEP code “FLAVRING” in item 25 on Form-20, in Item 28 on Form-30 and Item 15 on OSHA-55.
XV. Consultation. When appropriate, 21(d) Consultation Projects are encouraged to
develop their own outreach activities to address the hazards covered by this NEP.
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APPENDIX A
Flavorings That May Contain Diacetyl
Diacetyl may be considered both a chemical (it has uses other than as a flavoring) and a
flavoring in its own right. Butter distillate and natural butter distillate are simply terms for concentrated (but not 100 percent) diacetyl.
Both natural and artificial flavorings, as the terms are defined by the FDA, are relevant to this NEP. Do not cease inquiries because the employer represents that its business manufactures only “natural flavorings.” Natural flavoring may be just as hazardous as artificial flavorings; they are chemically identical.
Some foods, mainly dairy products, wine, and beer, all contain naturally-occurring diacetyl that is not added as a flavoring. This NEP does not cover the manufacturing of such food products.
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The following table lists food flavorings that may contain diacetyl.
Dairy Flavors Hybrid Dairy Flavors (contain a substantial dairy content) Butter Butter Pecan Cheese Strawberry Cream Cream Cheese Vanilla Cream Cheesecake Any other Crème flavor (or “creamy” in Ranch dressing the name)
Milk Root Beer Float Yogurt Chai Ice Cream Egg Sour Cream Buttermilk Mayonnaise Starter Distillate or Butter Starter Distillate “Brown” Flavors Other Flavors Butterscotch Nutmeg Coffee Honey Caramel Graham Cracker Vanilla Vinegar Tea Meat flavors (such as in gravy) Toffee Malt Chocolate (esp. milk chocolate) Wine¹ Cocoa Butter Beer Cocoa Tequila Maple Brown Sugar Marshmallow Hazelnut & Other nut flavors Peanut Butter Praline
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[TABLE 34-1] Dairy Flavors | Hybrid Dairy Flavors (contain a substantial dairy content) Butter | Butter Pecan Cheese | Strawberry Cream Cream Cheese | Vanilla Cream Cheesecake | Any other Crème flavor (or “creamy” in the name) Ranch dressing | Milk | Root Beer Float Yogurt | Chai Ice Cream | Egg | Sour Cream | Buttermilk | Mayonnaise | Starter Distillate or Butter Starter Distillate | “Brown” Flavors | Other Flavors Butterscotch | Nutmeg Coffee | Honey Caramel | Graham Cracker Vanilla | Vinegar Tea | Meat flavors (such as in gravy) Toffee | Malt Chocolate (esp. milk chocolate) | Wine¹ Cocoa Butter | Beer Cocoa | Tequila Maple | Brown Sugar | Marshmallow | Hazelnut & Other nut flavors | Peanut Butter | Praline |
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Fruit Flavors Other Flavors Strawberry Cranberry Raspberry Blackberry Boysenberry or other berry flavors Nearly any other kind of fruit flavor (e.g., banana, apple, grape, pear) Tomato Cider
¹ Note: This NEP does not target exposures to naturally-occurring diacetyl in beer and
wine.
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[TABLE 35-1] Fruit Flavors | Other Flavors Strawberry | Cranberry | Raspberry | Blackberry | Boysenberry or other berry flavors | Nearly any other kind of fruit flavor (e.g., banana, apple, grape, pear) | Tomato | Cider |
[/TABLE]
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APPENDIX B
Health Care Form Letter
Area Office Header Date
Name of Health Care Provider Address of Health Care Provider
Dear __
Subject: Occupational Lung Disease Among Employees in the Flavoring Manufacturing
Industry
The Occupational Safety and Health Administration (OSHA) Region/Area office is alerting health care professionals to the occurrence of occupational lung disease among employees who are exposed to diacetyl and other food flavoring chemicals. In 2000, the National Institute for Occupational Safety and Health (NIOSH) investigated a microwave popcorn manufacturing facility in Missouri where nine employees developed bronchiolitis obliterans, a severe, potentially fatal, pulmonary disease. The investigation concluded that there was an increased risk for occupational lung disease among employees with inhalational exposure to butter flavorings. Since this initial investigation, additional cases of occupational lung disease, including bronchiolitis obliterans, have
been recognized among employees at other microwave popcorn manufacturing plants and flavor manufacturing facilities. Occupational exposure to diacetyl, a butter flavoring chemical, is considered the most likely cause of the lung disease found in employees exposed to flavoring chemicals, but other flavoring chemicals may also contribute to the disease.
The April 2007 NIOSH Health Hazard Evaluation Report #2006-0303-3043: Report on Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant, reported two diagnoses of bronchiolitis obliterans in employees who were employed at two different California flavor manufacturing facilities. Neither employee was employed in the microwave-popcorn industry, but both employees handled pure diacetyl and other flavoring chemicals.
Occupational History
Occupational history inquires should include questions about current and past jobs, as well as information about workplace exposures to diacetyl and other food flavoring chemicals. It is important to ask if any other employees are experiencing respiratory
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symptoms or are known to have developed lung disease. Additional information about workplace exposures to diacetyl and other food flavoring chemicals can be found in Material Safety Data Sheets (MSDS) or by contacting flavoring manufacturers. Diacetyl is listed by the CAS number 431-03-8.
Symptoms
Symptoms experienced by employees include cough (usually non-productive) and dyspnea, particularly with exertion. These symptoms may not improve when employees are away from work (e.g., nights, weekends, vacations). Additional signs and symptoms related to exposure may include eye, nose, throat and skin irritation, fever, night sweats and weight loss. Symptoms are usually gradual in onset but severe symptoms may occur suddenly. Bronchiolitis obliterans is a rare disease and employees may be misdiagnosed as having asthma, chronic bronchitis, emphysema, or other lung diseases.
Medical Evaluation
The occupational lung disease identified in the NIOSH investigations was characterized
by fixed airways obstruction on spirometry after challenge with bronchodilators.
Spirometry findings may also include evidence of restriction. Spirometry should follow criteria established by the American Thoracic Society (ATS) guidelines for standardization of spirometry, which can be obtained through the ATS website: http://www.thoracic.org/sections/publications/statements/index.html.
Additional studies such as diffusing capacity are usually normal, but lung volumes may show hyperinflation. Chest radiographs are also usually normal. Findings on paired inspiratory and expiratory high resolution computerized tomography scans (HCRT scans) and lung biopsy are also used to establish the diagnosis of bronchiolitis obliterans. If there is evidence of fixed airways obstruction and bronchiolitis obliterans is suspected, referral
to pulmonary and radiographic specialty care is optimal to ensure correct diagnosis and follow-up of this rare and severe lung disease.
More information about occupational lung disease related to exposure to food flavoring chemicals is available at:
http://www.osha.gov/SLTC/flavoringlung/index.html http://www.cdc.gov/niosh/topics/flavorings/
Healthcare providers, who suspect flavorings-related lung disease, including bronchiolitis obliterans, can contact NIOSH at the following link:
www.cdc.gov/niosh/topics/flavorings/contact.html.
Providers can use this above link to inquire about or provide information regarding lung disease that may be related to exposures to flavoring chemicals. Cases should also be reported to local and state public health departments.
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OSHA is dedicated to saving lives, preventing injuries and illnesses, and protecting America’s working men and women. Safety and health add value to business, the workplace and life. For more information about OSHA programs, visit our website at www.osha.gov.
Sincerely,
Area Director
Enclosure(s)
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Employer Sample Letter
Area Office Header
Date
Name of Employer Address of Employer
Dear ___
You may be aware of reports of severe cases of an irreversible lung disease identified as bronchiolitis obliterans in employees working with diacetyl and other food flavoring chemicals. Bronchiolitis obliterans is characterized by fixed airways obstruction on lung function tests. The main respiratory symptoms experienced by workers include cough and
shortness of breath on exertion. These symptoms typically do not improve when the worker goes home at the end of the workday or on weekends or vacations. Additional symptoms may include eye, nose, throat and skin irritation, fever, night sweats and weight loss. Bronchiolitis obliterans has many known causes, such as inhalation of certain chemicals, certain bacterial and viral infections, organ transplantation, and reactions to certain medications. Known causes of bronchiolitis obliterans due to occupational or other environmental exposures include gases such as nitrogen oxides, sulfur dioxide, chlorine, ammonia, phosgene and other irritant gases. Recent investigations by the National Institute for Occupational Safety and Health (NIOSH) concluded that diacetyl and other flavoring chemicals pose a risk for bronchiolitis obliterans in the flavoring manufacturing workplace. See, e.g., Kanwal’s Report on Severe Fixed Obstructive Lung
Disease in Workers at a Flavoring Manufacturing Plant. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2006-0303-3043, April 2007. Bronchiolitis obliterans is often misdiagnosed as asthma or chronic bronchitis by the local physician.
Case clusters of fixed obstructive lung disease have been documented among workers at several different plants where chemicals are handled in the production of flavorings.
Enclosed are recommended preventative and control measures which, if implemented, should reduce the risk of obstructive lung disease among workers. These are best practice recommendations, but should not be considered all-inclusive worker protective measures.
Your unique knowledge of your workplace may indicate the need for alternative or additional protective measures. References for additional information and assistance are also included.
If you need assistance identifying hazards, you may wish to consider hiring an outside
safety and health consultant, talking with your insurance company, or contacting your state’s worker’s compensation agency for advice. An excellent way for employers to address safety and health in their workplace is to ask for assistance from OSHA’s onsite consultation program. This program is administered by a state agency and operated separately from OSHA’s enforcement program. The service is free and confidential, and there are no monetary fines if problems are found. Designed primarily for small employers, the onsite consultation program can help you identify hazards in your
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workplace and find effective and economical solutions for eliminating or controlling them. In addition, the OSHA state consultant can assist you in developing and implementing a safety and health management system for your workplace.
In your state, the OSHA onsite consultation program may be contacted at: Give address and phone number
OSHA is dedicated to saving lives, preventing injuries and illnesses and protecting America’s workers. Safety and health add value to business, the workplace and life. For more information about OSHA programs, visit our website at www.osha.gov.
Sincerely,
Area Director
Enclosure(s)
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Recommended Preventative and Control Measures
- Engineering and Work Practice Controls
Engineering controls are the first line of defense in employee protection. Therefore,
employers should provide appropriate engineering controls and should train their employees in the use of those controls and in appropriate work practices to ensure that employee exposures are eliminated or minimized. The following engineering controls are recommended for exposures to flavoring chemicals:
(cid:183) Use local exhaust ventilation when weighing and transferring flavoring chemicals. (cid:183) Use local ventilation for ribbon blenders. (cid:183) Isolate or enclose the production room from the rest of the plant using walls,
doors, or other appropriate barriers. (cid:183) Doors between production areas and other connecting areas should be kept closed when not in use. (cid:183) Equip the production room with a separate ventilation system or ensure that negative air pressure (relative to the rest of the plant) is maintained in the production room to avoid the outward migration of food flavoring chemicals to adjacent areas of the plant. (cid:183) Direct all exhaust ventilation outside the plant, but in accordance with state and local regulations, and sufficiently away from other building air intakes.
(cid:183) Reduce the operating temperature of the holding and mixing tanks to as low as the process will allow. (cid:183) Automate the cleaning and mixing processes. (cid:183) Use local exhaust ventilation in the liquid compounding room to capture evaporating chemicals from the mixing tanks. (cid:183) During mixing, maintain the tanks/vessels under a slight negative pressure at all times. (cid:183) Use hinged tank covers equipped with a ventilation takeoff and keeps them closed during mixing.
(cid:183) Move tanks into a ventilated enclosure while mixing or use a ventilated booth with flexible strip curtains to allow for movement of tanks in and out of the ventilated enclosure. (cid:183) Use lids with smaller openings for adding ingredients and use funnels for pouring ingredients into the tanks. (cid:183) When using 55-gallon drums, an annular exhaust can provide a semi-circular ventilation ring around the edge of the drum. (cid:183) When adding chemicals to tanks whose diameter is larger than about 2 feet, limit the open area by using lids and small openings for pouring. The use of a
back- draft slotted hood is not recommended. (cid:183) During bag dumping into blenders, enclose the face of the blender using local exhaust ventilation and maintain a face velocity of approximately 150 feet per
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minute. For large blenders the use of slots would help distribute the exhaust flow more evenly across the hood. (cid:183) Use a bag disposal chute or compactor and spray the inside of the bags with water before compacting to reduce airborne dust. (cid:183) Prevent spillage from overfilling tanks, leaks in seals and fittings, and manual transfer of materials, all of which have been identified as sources of emissions.
(cid:183) Establish standard operating procedures for cleaning mixing and holding tanks, containers, and spills. (cid:183) Reduce dust exposure during bag dumping by installing commercially available bag dumping stations equipped with local exhaust ventilation (three-sided canopy hood) and bag disposal. (cid:183) Put lids on transfer buckets to avoid residual vapor release and/or place buckets in a ventilated area following transfer; or use pumps to avoid manual transfer altogether.
(cid:183) Add food flavoring chemicals at room temperature. (cid:183) If food flavoring chemicals must be heated prior to adding them to the flavoring tank or mixing tank, transfer them to the tank via a pumping system rather than manual transfer. (cid:183) Provide additional general dilution ventilation by increasing the air changes in the room. (cid:183) Keep the storage room under negative pressure with respect to the rest of the plant.
(cid:183) Isolate cleaning areas and ensure that vessels used for powdered food flavoring chemicals are not cleaned with compressed air. When vessel entry is necessary, ensure compliance with the confined spaces entry requirements. (cid:183) Maintain good housekeeping in any areas where food flavorings or their ingredients are handled.
- Personal Protective Clothing and Equipment
a. Skin and Eye Protection
Ensure that appropriate protective clothing is worn when necessary to protect
employees from skin or eye hazards associated with food flavoring chemicals, particularly where such chemicals are being mixed or processed. Protective clothing includes garments worn over the employee’s skin. To be effective, personal protective equipment must be appropriate to the hazard it is meant to protect against, individually selected, properly fitted and periodically refitted, conscientiously and properly worn, regularly maintained, and replaced as necessary. See 29 CFR §1910.132. In addition, employers must:
(cid:183) Perform a workplace hazard assessment in accordance with 29 CFR §1910.132(d) to determine if hazards are present, or are likely to be present,
which necessitate the use of personal protective equipment (PPE);
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(cid:183) Provide and ensure the use of chemical-resistant gloves or sleeves or other appropriate protection when there is potential for dermal injury, and provide and ensure the use of chemical goggles or appropriate eye protection when a potential eye hazard exists; and (cid:183) Train employees on the limitations and use of PPE required during the handling of food flavoring chemicals.
b. Respiratory Protection
(cid:183) Employers requiring the use of respiratory protection must establish, implement, and maintain a written respiratory protection program in accordance with 29 CFR §1910.134(c). (cid:183) Employees must be trained annually and medically evaluated prior to using respiratory protection. (cid:183) Employees must be fit tested prior to being required to use respirators.
(cid:183) Employers must provide employees with clean respirators and ensure that respirators are being stored in a manner to protect them from damage or contamination. (cid:183) A NIOSH-certified half-facepiece negative-pressure respirator with organic vapor cartridges and particulate filters is the minimum level of respiratory protection recommended for entry into production areas. Employers should have a documented cartridge change out program. (cid:183) Powered air-purifying respirators or supplied-air respirators are also appropriate and will provide a higher level of protection.
- Training and Information
Employers must ensure that employees exposed to hazardous food flavoring chemicals are provided hazard communication training and information in accordance with 29 CFR §1910.1200. Employees should have access to, or be provided with, the following information:
(cid:183) The specific nature of the operations in their workplace where exposure to food flavoring chemicals may occur.
(cid:183) MSDSs for food flavoring chemicals. (cid:183) The signs and symptoms of hazardous exposures to food flavoring chemicals. (cid:183) The importance of avoiding skin contact when working with chemicals that pose a skin hazard. (cid:183) The engineering controls the employer is using to reduce employee exposures. (cid:183) Specific work practices that should be used to reduce exposures. (cid:183) The use of appropriate protective equipment, including respirators (where required) and skin protection.
(cid:183) Methods that may be used to detect the presence of hazardous food flavoring chemicals in the workplace, such as workplace monitoring. (cid:183) The results of any industrial hygiene sampling the employer or others have conducted.
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- Medical Surveillance
A medical screening program can help employers identify employees experiencing adverse health effects from exposure to hazardous food flavoring chemicals.
Spirometry, or pulmonary function testing (PFT), measures the breathing capacity of the lungs and is the best available test for early detection of decreasing or abnormal
lung function among exposed employees. It is recommended that employers
(cid:183) Perform a baseline spirometry test for all newly-hired employees and ask each employee to complete a health questionnaire before starting work in areas where there is exposure. (cid:183) Perform a medical evaluation (i.e. health questionnaire) and spirometry every six months for all employees exposed. A qualified physician with expertise in occupational lung disease can make additional recommendations regarding the nature and frequency of medical examinations and spirometry based on employee exposures specific to operations in your facility.
[Please refer to the OSHA SHIB for more information on medical screening.]
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Appendix C Sample Hazard Alert Letter
Note: This letter must be adapted to the specific circumstances noted in each inspection. The letter below is an example of the type of letter that may be appropriate in some circumstances. If
the employer has implemented, or is in the process of implementing, efforts to address hazardous conditions, those efforts should be recognized and encouraged, if appropriate.
Italicized comments are for OSHA compliance use only and should not be included in the letter.
Dear Employer
An inspection of your workplace and evaluation of your OSHA recordkeeping logs at (location) on (date) disclosed the following workplace condition(s) which may be associated with the development of occupational lung disease in your employees.
[Include a general description of working conditions for each task/job associated with respiratory disease or fixed airways obstruction, such as lack of ventilation, lack of PPE, inappropriate PPE, etc.]
The results of sampling showed exposure(s) above the detection limit(s) for [insert appropriate chemical(s)] and exposed employees have experienced or are experiencing documented instances of [insert appropriate illness (es) bronchiolitis obliterans, obstruction of airways, lung-function abnormalities, or other lung disease.] In the interest of workplace safety and health, I recommend that you voluntarily take the necessary steps to materially reduce or eliminate your employees' exposure to the conditions listed above.
Based on the results of its own studies at a flavoring manufacturing facility, NIOSH found that the following recommended engineering and work practice controls can help reduce employee exposures to flavoring chemicals. (See Kanwal NIOSH: Report on Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2006-0303-3043, April 2007.)
- Engineering Controls
Engineering controls are the first line of defense in employee protection. Therefore, employers should provide appropriate engineering controls and should train their employees in the use of those controls and in appropriate work practices to ensure that employee exposures are eliminated or minimized. The following engineering controls are
recommended
(cid:183) Use local exhaust ventilation when weighing and transferring flavoring chemicals. (cid:183) Use local ventilation for ribbon blenders. (cid:183) Isolate or enclose the production room from the rest of the plant using walls, doors, or other appropriate barriers.
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(cid:183) Doors between production areas and other connecting areas should be kept closed when not in use. (cid:183) Equip the production room with a separate ventilation system or ensure that negative air pressure (relative to the rest of the plant) is maintained in the production room to avoid the outward migration of food flavoring chemicals to adjacent areas of the plant.
(cid:183) Direct all exhaust ventilation outside the plant. (cid:183) Reduce the operating temperature of the holding and mixing tanks to as low as the process will allow. (cid:183) Automate the cleaning and mixing processes. (cid:183) Use local exhaust ventilation in the liquid compounding room to capture evaporating chemicals from the mixing tanks. (cid:183) During mixing, maintain the tanks/vessels under a slight negative pressure at all times.
(cid:183) Use hinged tank covers equipped with a ventilation takeoff and keep them closed during mixing. (cid:183) Move tanks into a ventilated enclosure while mixing or use a ventilated booth with flexible strip curtains to allow for movement of tanks in and out of the ventilated enclosure. (cid:183) Use lids with smaller openings for adding ingredients and use funnels for pouring ingredients into the tanks. (cid:183) When using 55-gallon drums, an annular exhaust can provide a semi-circular ventilation ring around the edge of the drum.
(cid:183) When using tanks whose diameter is larger than about 2ft., limit the open area by using lids and small openings for pouring. The use of a back draft slotted hood is not recommended. (cid:183) During bag dumping into blenders, enclose the face of the blender as much as possible and maintain a velocity of approximately 150 feet per minute. For large blenders the use of slots would help distribute the exhaust flow more evenly across the hood. (cid:183) Use a bag disposal chute or compactor and spray the inside of the bags with water before compacting reduces dust generations.
(cid:183) Prevent spillage from overfilling tanks, leaks in seals and fittings, and manual transfer of materials, all of which have been identified as sources of emissions. (cid:183) Establish standard operating procedures for cleaning mixing and holding tanks, containers, and spills. (cid:183) Reduce dust exposure during bag dumping by installing commercially available bag dumping stations equipped with local exhaust ventilation (three-sided canopy hood) and bag disposal. (cid:183) Put lids on transfer buckets to avoid residual vapor release and/or place buckets in a ventilated area following transfer; or use pumps to avoid manual transfer
altogether. (cid:183) Add food flavoring chemicals at room temperature. (cid:183) If food flavoring chemicals must be heated prior to adding them to the flavoring tank or mixing tank, transfer them to the tank via a pumping system rather than manual transfer.
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(cid:183) Provide additional general dilution ventilation by increasing the air changes in the room. (cid:183) Keep the storage room under negative pressure with respect to the rest of the plant. (cid:183) Isolate cleaning areas, and ensure that vessels used for powdered food flavoring chemicals are not cleaned with compressed air. When vessel entry is necessary,
ensure compliance with the confined spaces entry requirements. (cid:183) Maintain good housekeeping in any areas where food flavorings substances or their ingredients are handled.
- Personal Protective Clothing and Equipment
a. Skin and Eye Protection
Ensure that appropriate protective clothing is worn when necessary to protect employees from skin or eye hazards associated with food flavoring chemicals, particularly where such chemicals are being mixed or processed. Protective clothing includes garments worn over
the employee’s skin. To be effective, personal protective equipment must be appropriate to the hazard it is meant to protect against, individually selected, properly fitted and periodically refitted, conscientiously and properly worn, regularly maintained, and replaced as necessary. See 29 CFR §1910.132. In addition, employers must:
(cid:183) Perform a workplace hazard assessment in accordance with 29 CFR §1910.132(d) to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE); (cid:183) Provide and ensure the use of chemical-resistant gloves or sleeves or other appropriate protection when there is potential for dermal injury, and provide and
ensure the use of chemical goggles or appropriate eye protection when a potential eye hazard exists; and (cid:183) Train employees on the limitations and use of PPE required during the handling of food flavoring chemicals.
b. Respiratory Protection
(cid:183) Employers requiring the use of respiratory protection must establish, implement, and maintain a written respiratory protection program in accordance with 29 CFR §1910.134(c).
(cid:183) Employees must be trained annually and medically evaluated prior to using respiratory protection. (cid:183) Employees must be fit tested prior to being required to use respirators. (cid:183) Employers must provide employees with clean respirators and ensure that respirators are being stored in a manner to protect them from damage or contamination. (cid:183) A NIOSH-certified half-facepiece negative-pressure respirator with organic vapor cartridges and particulate filters is the minimum level of respiratory protection
recommended for entry into production areas. Employers should have a documented cartridge change out program.
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(cid:183) Powered air-purifying respirators or supplied-air respirators are also appropriate and will provide a higher level of protection.
- Training and Information
Employers must ensure that employees exposed to hazardous food flavoring chemicals are
trained in accordance with 29 CFR §1910.1200. Employees should have access to, or be provided with, the following information:
(cid:183) The specific nature of the operations in their workplace where exposure to food flavoring chemicals may occur. (cid:183) MSDSs for food flavoring chemicals. (cid:183) The signs and symptoms of hazardous exposures to food flavoring chemicals. (cid:183) The importance of avoiding skin contact when working with chemicals that poses a skin hazard.
(cid:183) The engineering controls the employer is using to reduce employee exposures. (cid:183) Specific work practices that should be used to reduce exposures. (cid:183) The use of appropriate protective equipment, including respirators and skin protection. (cid:183) Methods that may be used to detect the presence of hazardous food flavoring chemicals in the workplace, such as workplace monitoring. (cid:183) The results of any industrial hygiene sampling the employer or others have conducted.
- Medical Surveillance
A medical screening program can help employers identify employees experiencing adverse health effects from exposure to hazardous food flavoring chemicals. Spirometry, or pulmonary function testing (PFT), measures the breathing capacity of the lungs and is the best available test for early detection of decreasing or abnormal lung function among exposed employees. It is recommended that employers:
(cid:183) Perform a baseline spirometry test for all newly-hired employees and ask each employee to complete a health questionnaire before starting work in areas where
there is exposure. (cid:183) Perform a medical evaluation (i.e. health questionnaire) and spirometry every six months for all employees exposed. A qualified physician with expertise in occupational lung disease can make additional recommendations regarding the nature and periodicity of medical examinations and spirometry based on employee exposures specific to operations in your facility.
[Please refer to the OSHA SHIB, when it becomes available, for more information on medical screening.]
Using the above components, together with information gathered during the inspection, describe the specific conditions or weaknesses and suggest methods of abatement.
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You may voluntarily provide this Area Office with progress reports on your efforts to address these conditions. OSHA may return to your worksite to further examine the conditions noted above.
Enclosed is a list of available resources that may be of assistance to you in preventing work-related injuries and illnesses in your workplace. (provide a copy of OSHA booklet)
If you have any questions, please feel free to call [name and phone number] at [address].
Sincerely, Area Director
Enclosure
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APPENDIX D Guidelines for Air Sampling
This appendix summarizes the procedures for obtaining air samples for diacetyl, acetoin, and other food flavoring chemicals. Air concentrations tend to be highest in flavor blending processes and during packaging of final flavoring products. Most often the facilities have an open process with large tanks of flavorings which can be supplied as
powders, liquids or pastes. The food flavorings are often weighed, measured, poured, and blended.
CSHOs should ensure that both full-shift personal monitoring and short-term personal monitoring (especially during pouring and blending) are conducted in the production room where flavoring tanks are located, as well as in the production line, quality control/assurance laboratories and packaging areas. CSHOs should be aware that some employers may use powdered flavorings, which may become airborne. Therefore, CSHOs should be prepared to conduct both total and respirable dust sampling when deemed necessary. PNOR sampling may not be useful to determine exposures for short-term operations. Whether or not to take PNOR samples is left to CSHO judgment.
- DIACETYL and ACETOIN
Diacetyl (IMIS: D740) and acetoin (IMIS: A624) are sampled at the same time using the sampling media specified below. This sampler will be cited in the new OSHA analytical methods and it is currently available from SKC. OSHA personnel can obtain these sampling tubes from SLTC.
Sampling Media: Two silica gel tubes in series each containing 600 mg sections of specially washed and dried silica gel, 20/40 mesh, with a glass-fiber
filter plug (SKC 226-183 or equivalent).
NOTE: Wrap samples with aluminum foil (or other opaque material) during sampling to prevent sample loss caused by exposure to light. Use a tube holder to entirely enclose the sampler to protect the employee from the sharp glass and to prevent contamination of any food products with glass shards. Separate and cap the two tubes after sampling. Also wrap tubes with foil after separation.
TWA Sampling Short-Term Sampling
Maximum volume: 9 liters Maximum volume: 3 liters Maximum flow rate: 0.05 L/min Maximum flow rate: 0.2L/min Maximum time: 180 mins Maximum time: 15 mins
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2. POWDERED FLAVORINGS
CSHOs should obtain bulk samples when possible. CSHOs should request analysis for diacetyl bulk samples. Submit bulk samples in tightly sealed 20-mL glass scintillation vial. Vials should be approximately ¾ full and covered with aluminum foil.
Be certain to state that these samples may contain diacetyl and/or acetoin in the “Interferences and IH Comments to Lab” block on the form OSHA-91A.
(a) PNOR, Respirable Dust OSHA Method #2 OSHA IMIS Code Number: 9130
Sampling Media: Tared 37-mm diameter low-ash polyvinyl chloride filter preceded by a 10 mm Nylon cyclone Maximum volume: 816 Liters Maximum flow rate: 1.7 L/min
(b) PNOR, Total Dust OSHA Method #2 OSHA IMIS Code Number: 9135
Sampling Media: Tared 37-mm diameter low-ash polyvinyl chloride filter-DO NOT USE A CYCLONE Maximum volume: 960 Liters Maximum flow rate: 2.0 L/min
Below is a table showing other flavoring chemicals, PELs, and analytical
methods.
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APPENDIX D
FLAVORING SUBSTANCES Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 TWA 150 Charcoal 2-Butanol; Butylene hydrate; Irritating to 1231 78-92-2 sec-Butyl ppm 2000 NIOSH tube 10 L 2-Hydroxybutane; Methyl respiratory Low 0461 alcohol (450 ppm 1401 (100/50 0.2 L/min ethyl carbinol 3 tract mg/m3) mg) HMP-TWA 200 Mildly coated 2003 75-07-0 Acetic aldehyde; ethanal; ppm 2000 irritating to 3 L Acetaldehyde OSHA 68 XAD-2 tube High 0010 ethyl aldehyde 3 (360 ppm respiratory 0.05 L/min (450/225 mg/m3) tract mg) Acetic acid (aqueous); Charcoal TWA 10 2006 64-19-7 glacial acetic acid (pure Pulmonary OSHA tube 48 L Acetic acid ppm (25 50 ppm High 0020 compound); ethanoic acid; edema PV2119 (400/200 0.2 L/min mg/m3) methane-carboxylic acid 3 mg) Acetyl methyl carbinol; 1-hydroxyethyl methyl ketone; Anasorb 2008 513-86-0 Acetoin gamma-hydroxy-beta No Data NIOSH CMS 10 L None High A624 oxybutane; 3-hydroxy-2,3- in NPG 2558 tube(150/7 0.2 L/min butanone; 2,3-butanolone; 5 mg) dimethylketol 2 Acetyl methyl carbinol; 1- TWA 9L OSHA Two silica hydroxyethyl methyl ketone; 0.05L/min 10127 gel tubes 2008 513-86-0 Acetoin gamma-hydroxy-beta No Data None in-series High A624 oxybutane; 3-hydroxy-2,3- in NPG Short Term OSHA8 (600 mg butanone; 2,3-butanolone; 3L 10138 with GFF) dimethylketol 0.2 L/min 2035 Allyl No Data 870-23-5 2-Propene-1-thiol 5 None High mercaptan in NPG Ammonium sulfide; ammonium sulphide; Strong ammonium hydrogen irritant to 2053 Ammonium sulfide; ammonium No Data skin and 12124-99-1 None High sulfide hydrosulfide; ammonium in NPG mucous mercaptan; ammonium membranes sulfhydrate; 5 monoammonium sulfide 6 Banana oil; isopentyl TWA 100 Charcoal acetate; 3-methyl-1-butanol Irritating to 2055 123-92-2 Isoamyl ppm 1000 OSHA tube 10 L acetate; 3-methylbutyl ester respiratory Low 1530 acetate (525 ppm PV2142 (100/50 0.2 L/min of acetic acid; 3-methyl-butyl tract mg/m3) mg) ethanoate 3
D - 3
[TABLE 52-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 1231 Low | 78-92-2 0461 | sec-Butyl alcohol | 2-Butanol; Butylene hydrate; 2-Hydroxybutane; Methyl ethyl carbinol 3 | TWA 150 ppm (450 mg/m3) | 2000 ppm | Irritating to respiratory tract | NIOSH 1401 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2003 High | 75-07-0 0010 | Acetaldehyde | Acetic aldehyde; ethanal; ethyl aldehyde 3 | TWA 200 ppm (360 mg/m3) | 2000 ppm | Mildly irritating to respiratory tract | OSHA 68 | HMP-coated XAD-2 tube (450/225 mg) | 3 L
- 05 L/min 2006 High | 64-19-7 0020 | Acetic acid | Acetic acid (aqueous); glacial acetic acid (pure compound); ethanoic acid; methane-carboxylic acid 3 | TWA 10 ppm (25 mg/m3) | 50 ppm | Pulmonary edema | OSHA PV2119 | Charcoal tube (400/200 mg) | 48 L
- 2 L/min 2008 High | 513-86-0 A624 | Acetoin | Acetyl methyl carbinol; 1-hydroxyethyl methyl ketone; gamma-hydroxy-beta oxybutane; 3-hydroxy-2,3-butanone; 2,3-butanolone; dimethylketol 2 | None | No Data in NPG | | NIOSH 2558 | Anasorb
CMS tube(150/7 5 mg) | 10 L
- 2 L/min 2008 High | 513-86-0 A624 | Acetoin | Acetyl methyl carbinol; 1-hydroxyethyl methyl ketone; gamma-hydroxy-beta oxybutane; 3-hydroxy-2,3-butanone; 2,3-butanolone; dimethylketol | None | No Data in NPG | | OSHA 10127
OSHA8 10138 | Two silica gel tubes in-series (600 mg with GFF) | TWA 9L
- 05L/min Short Term
3L
- 2 L/min 2035 High | 870-23-5 | Allyl mercaptan | 2-Propene-1-thiol 5 | None | No Data in NPG | | | | 2053 High | 12124-99-1 | Ammonium sulfide | Ammonium sulfide; ammonium sulphide; ammonium hydrogen sulfide; ammonium hydrosulfide; ammonium mercaptan; ammonium sulfhydrate; monoammonium sulfide 6 | None | No Data in NPG | Strong irritant to skin and mucous membranes 5 | | | 2055 Low | 123-92-2 1530 | Isoamyl acetate | Banana oil; isopentyl acetate; 3-methyl-1-butanol acetate; 3-methylbutyl ester of acetic acid; 3-methyl-butyl ethanoate 3 | TWA 100 ppm (525 mg/m3) | 1000 ppm | Irritating to respiratory tract | OSHA PV2142 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min
[/TABLE]
--- Page 53 ---
APPENDIX D
FLAVORING SUBSTANCES Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Primary isoamyl alcohol;
TWA 100 Charcoal fermentation amyl alcohol; Irritating to 123-51-3 Isoamyl ppm 500 NIOSH tube 10 L 2057 fusel oil; isobutyl carbinol; respiratory 1532 alcohol (360 ppm 1402 (100/50 0.2 L/min isopentyl alcohol; 3-methyl- tract mg/m3) mg) 1-butanol 3 Benzoic aldehyde; 2127 100-52-7 No Data Benzaldehyde benzenecarbonyl; benzene None High B105 in NPG carbaldehyde 3 Toxic by inhalation 2147 Benzyl No Data and 100-53-8 -Toluenethiol; benzylthiol 5 None Low mercaptan in NPG ingestion; irritant to tissue 5 Anasorb
CMS
12 L (150/75
- 05 L/min mg)
TWA 200 SKC 575-Ethyl methyl ketone; MEK; Irritating to 5 to 240 2170 78-93-3 ppm 3000 OSHA 002 2-Butanone methyl acetone; methyl ethyl respiratory min Low 0430 (590 ppm 1004 Passive ketone 3 tract mg/m3) Sampler 3M 3520 5 to 240 Organic min Vapor Monitor TWA 150 1700 Charcoal n-Butyl acetate; n-butyl ester Irritating to 2174 123-86-4 ppm ppm OSHA tube 10 L Butyl acetate of acetic acid; butyl respiratory Low 0440 (710 [10%LE 1009 (100/50 0.2 L/min ethanoate 3 tract mg/m3) L] mg) Isobutyl ester of acetic acid;
TWA 150 1300 Charcoal 2175 2-methylpropyl acetate; 2- Irritating to 110-19-0 Isobutyl ppm ppm OSHA tube 10 L Low methylpropyl ester of acetic respiratory 1534 acetate (700 [10%LE 1009 (100/50 0.2 L/min acid; b-methylpropyl tract mg/m3) L] mg) ethanoate 3 TWA 100 1400 Charcoal n-Butyl alcohol; 1-butanol; n- Irritating to 2178 71-36-3 ppm ppm NIOSH tube 10 L Butyl alcohol butanol; 1-hydroxy-butane; respiratory Low 0460 (300 [10%LE 1401 (100/50 0.2 L/min n-propyl carbinol 3 tract mg/m3) L] mg) TWA 100 Charcoal IBA; isobutanol; Irritating to 2179 78-83-1 Isobutyl ppm 1600 NIOSH tube 10 L isopropylcarbinol; 2-methyl- respiratory Low 1536 alcohol (300 ppm 1401 (100/50 0.2 L/min 1-propanol 3 tract mg/m3) mg)
D - 4
[TABLE 53-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2057 | 123-51-3 1532 | Isoamyl alcohol | Primary isoamyl alcohol; fermentation amyl alcohol; fusel oil; isobutyl carbinol; isopentyl alcohol; 3-methyl-1-butanol 3 | TWA 100 ppm (360 mg/m3) | 500 ppm | Irritating to respiratory tract | NIOSH 1402 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2127 High | 100-52-7 B105 | Benzaldehyde | Benzoic aldehyde; benzenecarbonyl; benzene carbaldehyde 3 | None | No Data in NPG | | | | 2147 Low | 100-53-8 | Benzyl mercaptan | -Toluenethiol; benzylthiol 5 | None | No Data in NPG | Toxic by inhalation and ingestion; irritant to tissue 5 | | | 2170 Low | 78-93-3 0430 | 2-Butanone | Ethyl methyl ketone; MEK; methyl acetone; methyl ethyl ketone 3 | TWA 200 ppm (590 mg/m3) | 3000 ppm | Irritating to respiratory tract | OSHA 1004 | Anasorb
CMS (150/75 mg) SKC 575-002 Passive Sampler 3M 3520 Organic Vapor Monitor | 12 L
- 05 L/min 5 to 240 min 5 to 240 min 2174 Low | 123-86-4 0440 | Butyl acetate | n-Butyl acetate; n-butyl ester of acetic acid; butyl ethanoate 3 | TWA 150 ppm (710 mg/m3) | 1700 ppm
[10%LE L. | Irritating to respiratory tract | OSHA 1009 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2175 Low | 110-19-0 1534 | Isobutyl acetate | Isobutyl ester of acetic acid; 2-methylpropyl acetate; 2-methylpropyl ester of acetic acid; b-methylpropyl ethanoate 3 | TWA 150 ppm (700 mg/m3) | 1300 ppm
[10%LE L. | Irritating to respiratory tract | OSHA 1009 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2178 Low | 71-36-3 0460 | Butyl alcohol | n-Butyl alcohol; 1-butanol; n-butanol; 1-hydroxy-butane; n-propyl carbinol 3 | TWA 100 ppm (300 mg/m3) | 1400 ppm
[10%LE L. | Irritating to respiratory tract | NIOSH 1401 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2179 Low | 78-83-1 1536 | Isobutyl alcohol | IBA; isobutanol; isopropylcarbinol; 2-methyl-1-propanol 3 | TWA 100 ppm (300 mg/m3) | 1600 ppm | Irritating to respiratory tract | NIOSH 1401 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min
[/TABLE]
--- Page 54 ---
APPENDIX D
FLAVORING SUBSTANCES Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Butaldehyde; n-butanal; n-2219 No Data 123-72-8 Butyraldehyde butylaldehyde; butyric None Low in NPG aldehyde 5 2-Methylpropanal; isobutyric aldehyde; HMP- NIOSH isopropylformaldehyde; coated 2220 78-84-2 Isobutyraldehy No Data 2539 5 L isobutnal; methyl propanal; None XAD-2 tube High R237 de in NPG (OSHA 0.05 L/min valine aldehyde; (150/75 modified) isobutaldehyde; 2- mg) methylpropionaldehyde 3 SLTC in- Silica Gel Butanoic acid; ethylacetic 2221 107-92-6 No Data house tube 18 L Butyric acid acid; propylformic acid 3 None High B709 in NPG literature (520/260 0.1 L/min file mg) 2222 No Data 79-31-2 Isobutyric acid 2-Methylpropanoic acid 3 None High in NPG Irritating to Charcoal 2-Camphonone; Synthetic 2230 76-22-2 200 respiratory NIOSH tube 24 L Camphor camphor; Gum camphor; 2 mg/m3 Low 0522 mg/m3 tract, skin, 1301 (100/50 0.2 L/min Laurel camphor 3 and eyes mg) 3-Phenylpropenal; cinnamyl 2286 Cinnamaldehy No Data 104-55-2 aldehyde; cinnamic None Low de in NPG aldehyde 5 Two silica TWA 9 L Biacetyl; 2,3-butanedione; OSHA gel tubes 0.05 L/min 2,3-diketobutane; 10127 2370 431-03-8 No Data in-series Diacetyl dimethyldiketone; No PEL High D740 in NPG (600 mg Short Term dimethylglyoxal; glyoxal, OSHA each with 3L dimethyl 2 10138 GFF) 0.2L/min Biacetyl; 2,3-butanedione; Two silica 2,3-diketobutane; gel tubes 2370 431-03-8 No Data OSHA 3L Diacety dimethyldiketone; No PEL in-series High D740 in NPG PV21189 0.05L/min dimethylglyoxal; glyoxal, (150/75 mg dimethyl 2 each) Charcoal TWA 400 2000 Acetic ester; acetic ether; Irritating to tube 2414 141-78-6 ppm ppm NIOSH 6 L Ethyl acetate ethyl ester of acetic acid; respiratory (100/50 Low 1040 (1400 [10%LE 1457 0.2 L/min ethyl ethanoate 3 tract mg); ship mg/m3) L] cold to lab TBC coated TWA 25 12 L Ethyl acrylate (inhibited); Irritating to Charcoal 2418 140-88-5 ppm (100 Ca [300 0.05 L/min Ethyl acrylate ethyl ester of acrylic acid; respiratory OSHA 92 tube High 1050 mg/m3) ppm] ethyl propenoate 3 tract (110/55 [skin] mg)
D - 5
[TABLE 54-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2219 Low | 123-72-8 | Butyraldehyde | Butaldehyde; n-butanal; n-butylaldehyde; butyric aldehyde 5 | None | No Data in NPG | | | | 2220 High | 78-84-2 R237 | Isobutyraldehy de | 2-Methylpropanal; isobutyric aldehyde; isopropylformaldehyde; isobutnal; methyl propanal; valine aldehyde; isobutaldehyde; 2-methylpropionaldehyde 3 | None | No Data in NPG | | NIOSH 2539 (OSHA modified) | HMP-coated XAD-2 tube (150/75 mg) | 5 L
- 05 L/min 2221 High | 107-92-6 B709 | Butyric acid | Butanoic acid; ethylacetic acid; propylformic acid 3 | None | No Data in NPG | | SLTC in-house literature file | Silica Gel tube (520/260 mg) | 18 L
- 1 L/min 2222 High | 79-31-2 | Isobutyric acid | 2-Methylpropanoic acid 3 | None | No Data in NPG | | | | 2230 Low | 76-22-2 0522 | Camphor | 2-Camphonone; Synthetic camphor; Gum camphor;
Laurel camphor 3 | 2 mg/m3 | 200 mg/m3 | Irritating to respiratory tract, skin, and eyes | NIOSH 1301 | Charcoal tube (100/50 mg) | 24 L
- 2 L/min 2286 Low | 104-55-2 | Cinnamaldehy de | 3-Phenylpropenal; cinnamyl aldehyde; cinnamic aldehyde 5 | None | No Data in NPG | | | | 2370 High | 431-03-8 D740 | Diacetyl | Biacetyl; 2,3-butanedione; 2,3-diketobutane; dimethyldiketone; dimethylglyoxal; glyoxal, dimethyl 2 | No PEL | No Data in NPG | | OSHA 10127
OSHA 10138 | Two silica gel tubes in-series (600 mg each with
GFF) | TWA 9 L
- 05 L/min Short Term
3L
- 2L/min 2370 High | 431-03-8 D740 | Diacety | Biacetyl; 2,3-butanedione; 2,3-diketobutane; dimethyldiketone; dimethylglyoxal; glyoxal, dimethyl 2 | No PEL | No Data in NPG | | OSHA PV21189 | Two silica gel tubes in-series (150/75 mg each) | 3L
- 05L/min 2414 Low | 141-78-6 1040 | Ethyl acetate | Acetic ester; acetic ether; ethyl ester of acetic acid; ethyl ethanoate 3 | TWA 400 ppm (1400 mg/m3) | 2000 ppm
[10%LE L. | Irritating to respiratory tract | NIOSH 1457 | Charcoal tube (100/50 mg); ship cold to lab | 6 L
- 2 L/min 2418 High | 140-88-5 1050 | Ethyl acrylate | Ethyl acrylate (inhibited); ethyl ester of acrylic acid; ethyl propenoate 3 | TWA 25 ppm (100 mg/m3) [skin] | Ca [300 ppm] | Irritating to respiratory tract | OSHA 92 | TBC coated Charcoal tube (110/55 mg) | 12 L
- 05 L/min
[/TABLE]
--- Page 55 ---
APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Two Anasorb 747 tubes TWA 1000 3300 Alcohol; ethanol; EtOH; Irritating to in-series 2419 64-17-5 ppm ppm 12L Ethyl alcohol grain alcohol; respiratory OSHA 100 (400/200 Low 1060 (1900 [10%LE 0.05 L/min cologne spirit 3 tract mg); mg/m3) L] separate tubes after sampling TWA 100 Charcoal Irritating to 2434 109-94-4 Ethyl ester of formic acid; ppm 1500 NIOSH tube 10 L Ethyl formate respiratory Low 1155 ethyl methanoate 3 (300 ppm 1452 (100/50 0.2 L/min tract mg/m3) mg) Charcoal Formic acid (85%–95% in TWA 5 Corrosive, tube 2487 64-18-6 aqueous solution); hydrogen OSHA 48 L Formic acid ppm (9 30 ppm Pulmonary (400/200 High 1310 carboxylic acid; methanoic 186SG 0.2 L/min mg/m3) edema mg) ship acid 3 cold to lab Petroleum-Fural; 2- TWA 5 Irritating to base 2489 98-01-1 furancarboxaldehyde; ppm (20 100 180 L Furfural respiratory OSHA 72 Charcoal High 1325 furfuraldehyde; 2- mg/m3) ppm 1.0 L/min tract tube furfuraldehyde 3 [skin] (100/50) Porapak Q TWA 50 Irritating to 2491 98-00-0 Furfuryl 2-Furylmethanol; 2- NIOSH tube 25 L ppm (200 75 ppm respiratory Low 1330 alcohol hydroxymethylfuran 3 2505 (150/75 0.05 L/min mg/m3) tract mg)
960 L
- 0 L/min
TWA 15 (Total Dust) mg/m3 (total) Tared 37-Glycerin (anhydrous); glycyl Irritating to 10-mm 56-81-5 No Data OSHA mm low-2525 Glycerol alcohol; 1,2,3-propanetriol; respiratory Nylon 1363 in NPG PV2121 ash PCV trihydroxypropane 3 tract Clyclone;
TWA 5 filter 816 L mg/m3
- 7 L/min (resp) (Respirable Fraction) TWA 100 Charcoal Amyl methyl ketone; n-amyl Irritating to 110-43-0 ppm 800 NIOSH tube 25 L 2544 2-Heptanone methyl ketone; methyl (n- respiratory 1675 (465 ppm 1301 (100/50 0.2 L/min amyl) ketone 3 tract mg/m3) mg) TWA 200 3100 Charcoal Irritating to 2676 79-20-9 Methyl ester of acetic acid; ppm ppm NIOSH tube 7 L Methyl acetate respiratory Low 1650 methyl ethanoate 3 (610 [10%LE 1458 (100/50 0.2 L/min tract mg/m3) L] mg) 96-17-3 2-Methylbutanal5 None No Data
D - 6
[TABLE 55-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2419 Low | 64-17-5 1060 | Ethyl alcohol | Alcohol; ethanol; EtOH; grain alcohol; cologne spirit 3 | TWA 1000 ppm (1900 mg/m3) | 3300 ppm [10%LE L. | Irritating to respiratory tract | OSHA 100 | Two Anasorb 747 tubes in-series (400/200 mg); separate tubes after sampling | 12L
- 05 L/min 2434 Low | 109-94-4 1155 | Ethyl formate | Ethyl ester of formic acid; ethyl methanoate 3 | TWA 100 ppm (300 mg/m3) | 1500 ppm | Irritating to respiratory tract | NIOSH 1452 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2487 High | 64-18-6 1310 | Formic acid | Formic acid (85%–95% in aqueous solution); hydrogen carboxylic acid; methanoic acid 3 | TWA 5 ppm (9 mg/m3) | 30 ppm | Corrosive, Pulmonary edema | OSHA 186SG | Charcoal tube (400/200 mg) ship cold to lab | 48 L
- 2 L/min 2489 High | 98-01-1 1325 | Furfural | Fural; 2-furancarboxaldehyde; furfuraldehyde; 2-furfuraldehyde 3 | TWA 5 ppm (20 mg/m3) [skin] | 100 ppm | Irritating to respiratory tract | OSHA 72 | Petroleum-base Charcoal tube
(100/50) | 180 L
- 0 L/min 2491 Low | 98-00-0 1330 | Furfuryl alcohol | 2-Furylmethanol; 2-hydroxymethylfuran 3 | TWA 50 ppm (200 mg/m3) | 75 ppm | Irritating to respiratory tract | NIOSH 2505 | Porapak Q tube (150/75 mg) | 25 L
- 05 L/min 2525 | 56-81-5 1363 | Glycerol | Glycerin (anhydrous); glycyl alcohol; 1,2,3-propanetriol; trihydroxypropane 3 | TWA 15 mg/m3 (total)
TWA 5 mg/m3 (resp) | No Data in NPG | Irritating to respiratory tract | OSHA PV2121 | Tared 37-mm low-ash PCV filter | 960 L
- 0 L/min (Total Dust) 10-mm Nylon Clyclone;
816 L
- 7 L/min (Respirable Fraction) 2544 | 110-43-0 1675 | 2-Heptanone | Amyl methyl ketone; n-amyl methyl ketone; methyl (n-amyl) ketone 3 | TWA 100 ppm (465 mg/m3) | 800 ppm | Irritating to respiratory tract | NIOSH 1301 | Charcoal tube (100/50 mg) | 25 L
- 2 L/min 2676 Low | 79-20-9 1650 | Methyl acetate | Methyl ester of acetic acid; methyl ethanoate 3 | TWA 200 ppm (610 mg/m3) | 3100 ppm
[10%LE L. | Irritating to respiratory tract | NIOSH 1458 | Charcoal tube (100/50 mg) | 7 L
- 2 L/min | 96-17-3 | | 2-Methylbutanal5 | None | No Data | | | |
[/TABLE]
--- Page 56 ---
APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 2691 No Data 96-17-3 2-Methylbutr- 2-Methylbutanal 5 None Low in NPG aldehyde Three DNPH-coated filters; two stacked, SLTC in-Isovaleral; isovaleral; one 2692 590-86-3 No Data house 3 L 3-Methylbutyr- isovaleric aldehyde; 3- None separated Low I201 in NPG literature 0.05 L/min aldehyde methylbutyraldehyde 5 by a file cassette ring; store collected samples in dark Mercuric Mercaptomethane; C 10 ppm Irritating to acetate-2716 74-93-1 Methyl 150 20 L methanethiol; methyl (20 respiratory OSHA 26 coated 37-High 1643 mercaptan ppm 0.2 L/min sulfhydrate 3 mg/m3) tract mm glass fiber filter Anasorb
CMS
12 L (150/75
- 05 L/min mg)
TWA 100 SKC 575-Isobutyl methyl ketone; Irritating to 5 to 240 2731 108-10-1 4-Methyl-2- ppm 500 OSHA 002 methyl isobutyl ketone; respiratory min Low 1385 pentanone (410 ppm 1004 Passive MIBK; hexone 3 tract mg/m3) Sampler 3M 3520 5 to 240 Organic min Vapor Monitor Propionic acid, methyl ester; 2742 Methyl methyl propanoate; methyl No Data 554-12-1 None Low propionate propylate; propanoic acid, in NPG methyl ester 6 Dimethyl sulfide; dimethyl SLTC in- Charcoal 2746 75-18-3 sulphide; thiobismethane; No Data house tube 5 L Methyl sulfide None High D650 DMS; methylthiomethane; 2- in NPG literature (100/50 0.1 L/min thiopropane; 2-thiapropane 3 file mg) TWA 200 Charcoal Irritating to 2842 107-87-9 Ethyl acetone; methyl propyl ppm 1500 NIOSH tube 10 L 2-Pentanone respiratory Low 2010 ketone; MPK 3 (700 ppm 1300 (100/50 0.2 L/min tract mg/m3) mg)
D - 7
[TABLE 56-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2691 Low | 96-17-3 | 2-Methylbutr-aldehyde | 2-Methylbutanal 5 | None | No Data in NPG | | | | 2692 Low | 590-86-3 I201 | 3-Methylbutyr-aldehyde | Isovaleral; isovaleral; isovaleric aldehyde; 3-methylbutyraldehyde 5 | None | No Data in NPG | | SLTC in-house literature file | Three DNPH-coated filters; two stacked, one separated by a cassette ring; store collected samples in dark | 3 L
- 05 L/min 2716 High | 74-93-1 1643 | Methyl mercaptan | Mercaptomethane; methanethiol; methyl sulfhydrate 3 | C 10 ppm (20 mg/m3) | 150 ppm | Irritating to respiratory tract | OSHA 26 | Mercuric acetate-coated 37-mm glass fiber filter | 20 L
- 2 L/min 2731 Low | 108-10-1 1385 | 4-Methyl-2-pentanone | Isobutyl methyl ketone; methyl isobutyl ketone;
MIBK; hexone 3 | TWA 100 ppm (410 mg/m3) | 500 ppm | Irritating to respiratory tract | OSHA 1004 | Anasorb CMS (150/75 mg) SKC 575-002 Passive Sampler 3M 3520 Organic Vapor Monitor | 12 L
- 05 L/min 5 to 240 min 5 to 240 min 2742 Low | 554-12-1 | Methyl propionate | Propionic acid, methyl ester; methyl propanoate; methyl propylate; propanoic acid, methyl ester 6 | None | No Data in NPG | | | | 2746 High | 75-18-3 D650 | Methyl sulfide | Dimethyl sulfide; dimethyl sulphide; thiobismethane;
DMS; methylthiomethane; 2-thiopropane; 2-thiapropane 3 | None | No Data in NPG | | SLTC in-house literature file | Charcoal tube (100/50 mg) | 5 L
- 1 L/min 2842 Low | 107-87-9 2010 | 2-Pentanone | Ethyl acetone; methyl propyl ketone; MPK 3 | TWA 200 ppm (700 mg/m3) | 1500 ppm | Irritating to respiratory tract | NIOSH 1300 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min
[/TABLE]
--- Page 57 ---
APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Cyclopentimine; azacyclohexane; cypentil; hexahydropyridine; 2908 110-89-4 No Data Piperidine hexazane; None High R269 in NPG pentamethyleneimine; pentaethyleneimine;pyridine, hexahydro 3 2923 123-38-6 Propionaldehy Propanal; propyl aldehyde; No Data suffocating None High P129 de propionic aldehyde 5 in NPG odor 5 TWA 200 Charcoal Irritating to 2925 109-60-4 n-Propyl acetate; n-propyl ppm 1700 NIOSH tube 10 L Propyl acetate respiratory Low 2180 ester of acetic acid 3 (840 ppm 1450 (100/50 0.2 L/min tract mg/m3) mg) Isopropyl ester of acetic TWA 250 Charcoal Irritating to 2926 108-21-4 Isopropyl acid; 1-methylethyl ester of ppm 1800 NIOSH tube 9 L respiratory Low 1540 acetate acetic acid; (950 ppm 1454 (100/50 0.2 L/min tract 2-propyl acetate 3 mg/m3) mg) TWA 200 Charcoal n-Propyl alcohol; ethyl Irritating to 2928 71-23-8 ppm 800 NIOSH tube 10 L Propyl alcohol carbinol; 1-propanol; n- respiratory Low 2170 (500 ppm 1401 (100/50 0.2 L/min propanol 3 tract mg/m3) mg) Two Anasorb 747 tubes in-series Dimethyl carbinol; IPA; TWA 400 2000 Irritating to (400/200 2929 67-63-0 Isopropyl isopropanol; 2-propanol; ppm ppm 18 L respiratory OSHA 109 mg);
Low 1560 alcohol sec-propyl alcohol; rubbing (980 [10%LE 0.2 L/min tract separate alcohol 3 mg/m3) L] tubes after sampling; ship cold to lab Pormic acid, propyl ester; 2943 No Data 110-74-7 Propyl formate propyl methanoate; None Low in NPG propylformate 6 Formic acid, isopropyl ester; 2944 Isopropyl isopropyl formate; isopropyl No Data 625-55-8 None Low formate methanoate; in NPG isopropylformate 6
D - 8
[TABLE 57-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2908 High | 110-89-4 R269 | Piperidine | Cyclopentimine; azacyclohexane; cypentil; hexahydropyridine; hexazane; pentamethyleneimine; pentaethyleneimine;pyridine, hexahydro 3 | None | No Data in NPG | | | | 2923 High | 123-38-6 P129 | Propionaldehy de | Propanal; propyl aldehyde; propionic aldehyde 5 | None | No Data in NPG | suffocating odor 5 | | | 2925 Low | 109-60-4 2180 | Propyl acetate | n-Propyl acetate; n-propyl ester of acetic acid 3 | TWA 200 ppm (840 mg/m3) | 1700 ppm | Irritating to respiratory tract | NIOSH 1450 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2926 Low | 108-21-4 1540 | Isopropyl acetate | Isopropyl ester of acetic acid; 1-methylethyl ester of acetic acid; 2-propyl acetate 3 | TWA 250 ppm (950 mg/m3) | 1800 ppm | Irritating to respiratory tract | NIOSH 1454 | Charcoal tube (100/50 mg) | 9 L
- 2 L/min 2928 Low | 71-23-8 2170 | Propyl alcohol | n-Propyl alcohol; ethyl carbinol; 1-propanol; n-propanol 3 | TWA 200 ppm (500 mg/m3) | 800 ppm | Irritating to respiratory tract | NIOSH 1401 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 2929 Low | 67-63-0 1560 | Isopropyl alcohol | Dimethyl carbinol; IPA; isopropanol; 2-propanol; sec-propyl alcohol; rubbing alcohol 3 | TWA 400 ppm (980 mg/m3) | 2000 ppm
[10%LE L. | Irritating to respiratory tract | OSHA 109 | Two Anasorb 747 tubes in-series (400/200 mg); separate tubes after sampling; ship cold to lab | 18 L
- 2 L/min 2943 Low | 110-74-7 | Propyl formate | Pormic acid, propyl ester; propyl methanoate; propylformate 6 | None | No Data in NPG | | | | 2944 Low | 625-55-8 | Isopropyl formate | Formic acid, isopropyl ester; isopropyl formate; isopropyl methanoate; isopropylformate 6 | None | No Data in NPG | | | |
[/TABLE]
--- Page 58 ---
APPENDIX D
FLAVORING SUBSTANCES Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Two XAD-7 tubes in-TWA 5 series Irritating to 2966 110-86-1 ppm 1000 SLTC in- (100/50 10 L Pyridine Azabenzene; azine 3 respiratory High 2220 (15 ppm house file mg); 0.1 L/min tract mg/m3) separate tubes after sampling MCEF filter followed by Sulfurous acid anhydride; TWA 5 Irritating to 3039 7446-09-5 100 NIOSH Na CO - 200 L Sulfur dioxide sulfurous oxide; ppm (13 respiratory 2 3 High 2290 ppm 6004 coated 1.5 L/min sulfur oxide 3 mg/m3) tract cellulose filter 3173 1-Hydroxy-2- No Data 5077-67-8 None Low butanone in NPG 3217 2,4 No Data 764-40-9 None High Pentadienal in NPG 3218 No Data 764-39-6 2-Pentenal None High in NPG 3219 No Data 107-85-7 Isopentylamine 1-Amino-3-methylbutane 6 None High in NPG Carbolic acid; TWA 5 hydroxybenzene; ppm Corrosive, XAD-7 tube 3223 108-95-2 250 24 L Phenol monohydroxy-benzene; (19 Pulmonary OSHA 32 (100/50 High 2040 ppm 0.1 L/min phenyl alcohol; phenyl mg/m3) edema mg) hydroxide 3 [skin] TWA 100 ppm C 200 ppm TBC-coated Ethenyl benzene; 600 ppm Irritating to Charcoal 3233 100-42-5 phenylethylene; styrene 700 12 L Styrene (5-minute respiratory OSHA 89 tube Low 2280 monomer; styrol; vinyl ppm 0.05 L/min maximum tract (100/50 benzene 3 peak in mg) any 3 hours)
D - 9
[TABLE 58-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 2966 High | 110-86-1 2220 | Pyridine | Azabenzene; azine 3 | TWA 5 ppm (15 mg/m3) | 1000 ppm | Irritating to respiratory tract | SLTC in-house file | Two XAD-7 tubes in-series (100/50 mg); separate tubes after sampling | 10 L
- 1 L/min 3039 High | 7446-09-5 2290 | Sulfur dioxide | Sulfurous acid anhydride; sulfurous oxide; sulfur oxide 3 | TWA 5 ppm (13 mg/m3) | 100 ppm | Irritating to respiratory tract | NIOSH 6004 | MCEF filter followed by Na CO -2 3 coated cellulose filter | 200 L
- 5 L/min 3173 Low | 5077-67-8 | 1-Hydroxy-2-butanone | | None | No Data in NPG | | | | 3217 High | 764-40-9 | 2,4 Pentadienal | | None | No Data in NPG | | | | 3218 High | 764-39-6 | 2-Pentenal | | None | No Data in NPG | | | | 3219 High | 107-85-7 | Isopentylamine | 1-Amino-3-methylbutane 6 | None | No Data in NPG | | | | 3223 High | 108-95-2 2040 | Phenol | Carbolic acid; hydroxybenzene; monohydroxy-benzene; phenyl alcohol; phenyl hydroxide 3 | TWA 5 ppm (19 mg/m3) [skin] | 250 ppm | Corrosive, Pulmonary edema | OSHA 32 | XAD-7 tube (100/50 mg) | 24 L
- 1 L/min 3233 Low | 100-42-5 2280 | Styrene | Ethenyl benzene; phenylethylene; styrene monomer; styrol; vinyl benzene 3 | TWA 100 ppm C 200 ppm 600 ppm (5-minute maximum peak in any 3 hours) | 700 ppm | Irritating to respiratory tract | OSHA 89 | TBC-coated Charcoal tube (100/50 mg) | 12 L
- 05 L/min
[/TABLE]
--- Page 59 ---
APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 2500 Carbosieve TWA 1000 Irritating to 3326 67-64-1 Dimethyl ketone; ketone ppm S-III tube 3 L0.05 Acetone ppm (2400 respiratory OSHA 69 Low 0040 propane; 2-propanone 3 [10%LE (130/65 L/min mg/m3) tract L. mg) Isobutenyl methyl ketone; TWA 25 1400 Charcoal Irritating to 3368 141-79-7 4-Methyl-3- isopropylideneacetone; ppm ppm NIOSH tube 10 L respiratory Low 1635 penten-2-one methyl isobutenyl ketone; (100 [10%LE 1301 (100/50 0.2 L/min tract mesityl oxide 3 mg/m3) L] mg) 3382 1-Penten-3- No Data 1629-58-9 Ethyl vinyl ketone 6 None Low one in NPG 3407 2-Methyl-2- No Data 497-70-0 None Low butenal in NPG 3417 3-Penten-2- Ethylidene acetone; methyl No Data 625-33-2 None Low one propenyl keto 6 in NPG Mercuric SLTC in-Butanethiol; n-butanethiol; TWA 10 Irritating to acetate-3478 109-79-5 1- 500 house 20 L 1-mercaptobutane; n-butyl ppm (35 respiratory coated 37-Low 0480 Butanethiol ppm literature 0.2 L/min mercaptan 3 mg/m3) tract mm glass file fiber filter 3-Mercapto-3521 propane;propane-1- No Data 107-03-9 Propanethiol None High thio;propyl mercaptan; n- in NPG propyl mercaptan 3 Azacyclopentane, prolamine, pyrrole, 3523 No Data 123-75-1 Pyrrolidine tetrahydro-; None High in NPG tetrahydropyrrole, tetramethyleneimi 6 Methyl disulfide; dimethyl disulfide; dimethyldisulphide, SLTC in- Charcoal 3536 Dimethyl dimethyldisulfide, disulphide, No Data house tube 10 L 624-92-0 None Low disulfide dimethyl; disulfide, dimethyl; in NPG literature (100/50 0.1 L/min 2, 3-dithiabutane; DMDS file mg) Evolution 6 Charcoal Diisobutyl ketone; DIBK; TWA 50 Irritating to 108-83-8 2,6-Dimethyl- 500 NIOSH tube 25 L 3537 sym-diisopropyl acetone; ppm (290 respiratory 0924 4-heptanone ppm 1300 (100/50 0.2 L/min isovalerone; valerone 3 mg/m3) tract mg)
D - 10
[TABLE 59-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 3326 Low | 67-64-1 0040 | Acetone | Dimethyl ketone; ketone propane; 2-propanone 3 | TWA 1000 ppm (2400 mg/m3) | 2500 ppm [10%LE L. | Irritating to respiratory tract | OSHA 69 | Carbosieve S-III tube (130/65 mg) | 3 L0.05 L/min 3368 Low | 141-79-7 1635 | 4-Methyl-3-penten-2-one | Isobutenyl methyl ketone; isopropylideneacetone; methyl isobutenyl ketone; mesityl oxide 3 | TWA 25 ppm (100 mg/m3) | 1400 ppm [10%LE L. | Irritating to respiratory tract | NIOSH 1301 | Charcoal tube (100/50 mg) | 10 L
- 2 L/min 3382 Low | 1629-58-9 | 1-Penten-3-one | Ethyl vinyl ketone 6 | None | No Data in NPG | | | | 3407 Low | 497-70-0 | 2-Methyl-2-butenal | | None | No Data in NPG | | | | 3417 Low | 625-33-2 | 3-Penten-2-one | Ethylidene acetone; methyl propenyl keto 6 | None | No Data in NPG | | | | 3478 Low | 109-79-5 0480 | 1-Butanethiol | Butanethiol; n-butanethiol; 1-mercaptobutane; n-butyl mercaptan 3 | TWA 10 ppm (35 mg/m3) | 500 ppm | Irritating to respiratory tract | SLTC in-house literature file | Mercuric acetate-coated 37-mm glass fiber filter | 20 L
- 2 L/min 3521 High | 107-03-9 | Propanethiol | 3-Mercapto-propane;propane-1-thio;propyl mercaptan; n-propyl mercaptan 3 | None | No Data in NPG | | | | 3523 High | 123-75-1 | Pyrrolidine | Azacyclopentane, prolamine, pyrrole, tetrahydro-; tetrahydropyrrole, tetramethyleneimi 6 | None | No Data in NPG | | | | 3536 Low | 624-92-0 | Dimethyl disulfide | Methyl disulfide; dimethyl disulfide; dimethyldisulphide, dimethyldisulfide, disulphide, dimethyl; disulfide, dimethyl; 2, 3-dithiabutane; DMDS Evolution 6 | None | No Data in NPG | | SLTC in-house literature file | Charcoal tube (100/50 mg) | 10 L
- 1 L/min 3537 | 108-83-8 0924 | 2,6-Dimethyl-4-heptanone | Diisobutyl ketone; DIBK; sym-diisopropyl acetone; isovalerone; valerone 3 | TWA 50 ppm (290 mg/m3) | 500 ppm | Irritating to respiratory tract | NIOSH 1300 | Charcoal tube (100/50 mg) | 25 L
- 2 L/min
[/TABLE]
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APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 Petroleum-Isoacetophorone; 3,5,5- based TWA 25 Irritating to 3553 78-59-1 trimethyl-2-cyclohexenone; 200 NIOSH Charcoal 12 L Isophorone ppm (140 respiratory Low 1538 3,5,5-trimethyl-2- ppm 2508 tube 0.2 L/min mg/m3) tract cyclohexen-1-one 3 (100/50 mg) 3584 Ethyl vinyl carbinol; 1- No Data 616-25-1 1-Penten-3-ol None Low pentenol-3 6 in NPG 3-Methyl-2-butenal; 3, 3-dimethylacrylaldehyde; 3, 3-3646 3-Methyl-2- No Data 107-86-8 dimethylacrolein; 3- None Low butenal in NPG methylcrotonaldehyde; senecioaldehyde 6 2-Buten-1-ol, 3-methyl-; dimethylallyl alcohol; 3647 3-Methyl-2- gamma, gamma- No Data 556-82-1 None Low buten-1-ol dimethylallyl alcohol; 3, 3- in NPG dimethylallyl alcohol; prenol; prenyl alcohol 6 Diphenyl oxide; phenoxy TWA 1 Irritating to XAD-7 tube 3667 101-84-8 100 SLTC in- 20 L Diphenyl ether benzene; phenyl oxide; ppm (7 respiratory (100/50 Low 2047 ppm house file 0.2 L/min phenyl ether 3 mg/m3) tract mg) Special sampling tube containing uncoated
7.5 L
GFF C 20 ppm Irritating to 0.5 L/min followed by 50 ppm respiratory ceiling 3779 7783-06-4 Hydrogen Hydrosulfuric acid; sewer 100 OSHA Na CO -[10-minute tract, 2 3 High 1480 sulfide gas; sulfuretted hydrogen 3 ppm 1008 coated GFF maximum Pulmonary 5 L followed by peak] edema 0.5 L/min two AgNO 3 Peak -coated silica gel beds (200/200 mg) 3860 Methyl ethyl No Data 624-89-5 None Low sulfide in NPG 3897 75-33-2 Isopropanethiol; 2-No Data High S248 2-Propanethiol propanethion; 2- None in NPG mercaptopropane 3
D - 11
[TABLE 60-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 3553 Low | 78-59-1 1538 | Isophorone | Isoacetophorone; 3,5,5-trimethyl-2-cyclohexenone; 3,5,5-trimethyl-2-cyclohexen-1-one 3 | TWA 25 ppm (140 mg/m3) | 200 ppm | Irritating to respiratory tract | NIOSH 2508 | Petroleum-based Charcoal tube (100/50 mg) | 12 L
- 2 L/min 3584 Low | 616-25-1 | 1-Penten-3-ol | Ethyl vinyl carbinol; 1-pentenol-3 6 | None | No Data in NPG | | | | 3646 Low | 107-86-8 | 3-Methyl-2-butenal | 3-Methyl-2-butenal; 3, 3-dimethylacrylaldehyde; 3, 3-dimethylacrolein; 3-methylcrotonaldehyde; senecioaldehyde 6 | None | No Data in NPG | | | | 3647 Low | 556-82-1 | 3-Methyl-2-buten-1-ol | 2-Buten-1-ol, 3-methyl-; dimethylallyl alcohol; gamma, gamma-dimethylallyl alcohol; 3, 3-dimethylallyl alcohol; prenol; prenyl alcohol 6 | None | No Data in NPG | | | | 3667 Low | 101-84-8 2047 | Diphenyl ether | Diphenyl oxide; phenoxy benzene; phenyl oxide; phenyl ether 3 | TWA 1 ppm (7 mg/m3) | 100 ppm | Irritating to respiratory tract | SLTC in-house file | XAD-7 tube (100/50 mg) | 20 L
- 2 L/min 3779 High | 7783-06-4 1480 | Hydrogen sulfide | Hydrosulfuric acid; sewer gas; sulfuretted hydrogen 3 | C 20 ppm 50 ppm [10-minute maximum peak] | 100 ppm | Irritating to respiratory tract, Pulmonary edema | OSHA 1008 | Special sampling tube containing uncoated
GFF followed by Na CO -2 3 coated GFF followed by two AgNO 3 -coated silica gel beds (200/200 mg) | 7.5 L
- 5 L/min ceiling
5 L
- 5 L/min Peak 3860 Low | 624-89-5 | Methyl ethyl sulfide | | None | No Data in NPG | | | | 3897 High | 75-33-2 S248 | 2-Propanethiol | Isopropanethiol; 2-propanethion; 2-mercaptopropane 3 | None | No Data in NPG | | | |
[/TABLE]
--- Page 61 ---
APPENDIX D
FLAVORING SUBSTANCES
Air FEMA CAS No.
Volume No. and OSHA Respirator Analytical Sampling Substance Synonyms PEL IDLH 3 and and IMIS 2 y Acute 3,4 Method 2 Medium 2 Sampling Priority1 No.
Rate 2 3898 No Data 5724-81-2 1-Pyroroline None High in NPG Chromosor TWA 50 Irritating to 3909 108-94-1 Cyclohexanon Anone; cyclohexyl ketone; 700 b 106 tube 10 L ppm (200 respiratory OSHA 1 Low 0830 e pimelic ketone 3 ppm (100/50 0.2 L/min mg/m3) tract mg) TWA 100 Porapak Q Irritating to 3946 583-60-8 2-Methylcyclo- ppm (460 600 NIOSH tube 6 L o-Methylcyclohexanone 3 respiratory Low 1765 hexanone mg/m3) ppm 2521 (150/75 0.05 L/min tract [skin] mg) Isopropanolamine; 1- NTIC-3965 78-96-6 1-Amino-2- aminopropan-2-ol; No Data OSHA coated 20 L None Low A606 Propanol aminopropyl alcohol; 2- in NPG PV2122 XAD-2 tube 0.1 L/min hydroxypropylamine 3 (80/40 mg) Particulates Tared 37-Not not otherwise PNOR OSHA mm low- 960 L applicable 15 mg/m3 regulated (Total Dust) PV2121 ash PCV 2.0 L/min 9135 (Total Dust) filter Particulates 10-mm Tared 37-Not not otherwise Nylon PNOR OSHA mm low-applicable regulated 5 mg/m3 Cyclone; (Respriable Fraction) PV2121 ash PCV 9130 (Respirable 816 L filter Fraction) 1.7 L/min † OSHA Method PV2118 is suitable for diacetyl, but it would be more convenient to use either OSHA Method 1012 or Method 1013.
Notes / References: 1 The High/Low Priority notations were assigned by the Flavor And Extract Manufacturers Association (FEMA). The priority levels were assigned based on inhalation exposure data, chemical structure, and volatility. FEMA stated that the higher priority chemicals pose a greater risk of respiratory injury, whereas, the lower priority chemicals pose a hazard only in more extreme circumstances of exposure. {Ref:17} 2 OSHA Chemical Sampling Information http://osha.gov/dts/chemicalsampling/toc/toc_chemsamp.html 3 NIOSH Pocket Guide to Chemical Hazards. http://www.cdc.gov/niosh/npg/4 International Chemical Safety Cards. http://www.cdc.gov/niosh/ipcs/ipcscard.html 5 Lewis, R.J. Hawley’s Condensed Chemical Dictionary, 14th Edition [CD-ROM] Wiley Interscience: New York, 2002. 6 ChemWatch Material Safety Data Sheet. http://osha.chemwatch.us/ (accessed May 22, 2007 by paid subscription).
D - 12
[TABLE 61-1]
APPENDIX D
FLAVORING SUBSTANCES | | | | | | | | |
FEMA No. and Priority1 | CAS No. and OSHA IMIS 2 No. | Substance | Synonyms | PEL | IDLH 3 | Respirator y Acute 3,4 | Analytical Method 2 | Sampling Medium 2 | Air Volume and Sampling Rate 2 3898 High | 5724-81-2 | 1-Pyroroline | | None | No Data in NPG | | | | 3909 Low | 108-94-1 0830 | Cyclohexanon e | Anone; cyclohexyl ketone; pimelic ketone 3 | TWA 50 ppm (200 mg/m3) | 700 ppm | Irritating to respiratory tract | OSHA 1 | Chromosor b 106 tube (100/50 mg) | 10 L
- 2 L/min 3946 Low | 583-60-8 1765 | 2-Methylcyclo-hexanone | o-Methylcyclohexanone 3 | TWA 100 ppm (460 mg/m3) [skin] | 600 ppm | Irritating to respiratory tract | NIOSH 2521 | Porapak Q tube (150/75 mg) | 6 L
- 05 L/min 3965 Low | 78-96-6 A606 | 1-Amino-2-Propanol | Isopropanolamine; 1-aminopropan-2-ol; aminopropyl alcohol; 2-hydroxypropylamine 3 | None | No Data in NPG | | OSHA
PV2122 | NTIC-coated XAD-2 tube (80/40 mg) | 20 L
- 1 L/min | Not applicable 9135 | Particulates not otherwise regulated (Total Dust) | PNOR (Total Dust) | 15 mg/m3 | | | OSHA PV2121 | Tared 37-mm low-ash PCV filter | 960 L
- 0 L/min | Not applicable 9130 | Particulates not otherwise regulated (Respirable Fraction) | PNOR (Respriable Fraction) | 5 mg/m3 | | | OSHA PV2121 | Tared 37-mm low-ash PCV filter | 10-mm Nylon Cyclone;
816 L
- 7 L/min
[/TABLE]
--- Page 62 ---
7, 8 Air samples for both diacetyl and acetoin are collected on two single-section sampling tubes connected in series with flexible tubing. The two sampling tubes must be protected from light because light will decompose diacetyl and acetoin. If the protective tube cover is opaque it may be sufficient to protect the sampling tubes from light, otherwise wrap the sampler with aluminum foil. The two tubes must be separated, capped, and protected from light with aluminum foil or other opaque material after sampling. Two methods were fully validated at different levels for the analysis of samples; both diacetyl and acetoin are determined simultaneously. OSHA Method 1012 has been optimized for levels of about 50 parts-per-billion and uses post sampling chemical derivatization and analysis by gas chromatography with electron capture detection.
The other method, OSHA Method 1013, has been streamlined for levels of about 500 parts-per-billion; and uses solvent extraction and analysis by gas chromatography with flame ionization detection.
Samples are stable for at least two weeks before analysis; and up to 80% relative humidity in the sampled air has no effect on sample results when the specified sampling and analytical procedures are followed. 9 Persons wishing to sample for diacetyl may find it more convenient to use either OSHA Method 1012 or Method 1013 than OSHA Method PV2118. Methods 1012 and 1013 allow both diacetyl and acetoin to be determined from the same sample and permits a longer sampling time.
NPG = NIOSH Pocket Guide to Chemical Hazards (referenced above)
D - 13
--- Page 63 ---
Appendix E Hazards at Flavoring Manufacturing Workplaces
Introduction
The Flavor and Extract Manufacturers Association (FEMA) has identified the following conditions under which significant exposures to diacetyl or other food flavoring chemicals may occur. However, CSHOs should examine all potential exposures, especially in the production room.
Production Room
In the production room, liquid and/or powdered flavors are formulated by manually (scooping, pouring) combining several different chemical ingredients and/or mixing flavor compounds with food ingredients. Most often, open containers are used to pour and measure these ingredients which are then transferred to open tanks for liquid flavorings, or blenders for powdered flavorings. In some instances, the flavoring is heated repeatedly, mixed, and then re-heated again.
The following work practices can greatly reduce opportunities for employee exposure to diacetyl and other food flavoring chemicals:
(cid:183) Mixing should be conducted in fully or partially closed containers with local ventilation. (cid:183) Liquid flavoring substances should be piped, not poured, into mixing containers. (cid:183) Any pouring should be done slowly and carefully to prevent spilling. (cid:183) In some instances liquids can be transferred into mixing containers below the surface of solutions in the container to minimize splashing. (cid:183) Pouring powdered flavors slowly, and close to the mixing container, minimizes airborne particulates.
(cid:183) Cold storage should be provided for flavoring chemicals, as this would reduce evaporative emissions arising from pouring. (cid:183) When feasible, use a closed transfer process. (cid:183) Using lids on mixing and holding tanks while not in use. (cid:183) Adding the powdered ingredients last to the liquid mixture also minimizes airborne particles.
Laboratory
Research and Development (RD) and Quality Assurance and Control laboratories all provide
opportunities for exposure to flavoring chemicals. NIOSH recommends using laboratory exhaust hoods whenever employees are required to handle open containers of flavoring chemicals.
Spray-Dry Manufacturing Process
E - 1
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The Spray-drying manufacturing process is a process in which a flavor is attached to a carbohydrate substrate. This process includes flavors such as fruit, dairy and savory flavors. In their finished form, the spray dried flavors are powders, and this process provides opportunities for inhalation exposure. Other sources of exposure during this process include the blending in, and collection of powder product from, the ribbon blender.
NIOSH has recommended the following: o Securing the top of the product bag to the outlet of the blender when unloading. o Using a continuous liner to provide a continuous pull-down bag to contain any
dust generated during collection. o Using a local exhaust ventilation hood around the outlet to contain potential dust emissions.
Cleaning Operations
Tanks or other vessels that contain liquid flavors or mixtures are cleaned with steam or heated water. Tanks or vessels that contain powdered flavoring most often are cleaned with compressed air. These cleaning methods can result in increased exposures to employees. The cleaning areas should be isolated and contained to prevent the dissemination of airborne food flavoring chemicals. FEMA recommends an automated cleaning process, while NIOSH recommends that
during cleaning, an initial wash down of the tank or vessel be done with cold water, followed by a rinse with warm water.
E - 2
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Appendix F CSHO Guidance for Employee Interviews
This appendix contains some questions that may assist CSHOs during employee interviews. This is not a specific questionnaire, but these questions may help to assess possible health issues in employees in the flavoring manufacturing industry. The questions do not need to be asked verbatim, but the topics can guide the interview. It is very important to ask employees questions about a history of cough or breathing problems, and specifically ask if employees have ever been diagnosed with airways obstruction or bronchiolitis obliterans. Please be aware that the answers to some of these questions may contain privileged medical information, which must be
maintained in such a manner as to ensure employee confidentiality. The CSHO should also inform the employee that he/she is not a medical professional and cannot provide medical advice, diagnosis, or treatment to the employee. The CSHO can provide the letter in Appendix B for the employee to take to his/her physician.
A. Smoking history: Do you currently smoke or have you smoked in the past? (If yes, ask how many 1. packs/day and how long has the employee smoked, and when did the employee quit.)
B. Eye and Skin Irritation
Ask the employee about eye and skin irritation, and ask if the employee associates any symptoms with workplace exposure. For example:
- Since working at the plant, have you had any symptoms of eye irritation, such as watery eyes, red eyes, burning or itching eyes?
Is there any exposure at work that you associate with eye irritation?
- Have you seen a doctor for eye irritation? (If yes, ask if employee was given a
specific diagnosis).
Since working at this plant have you developed any skin problems, such as
- itching, rash, eczema, blisters, or burns?
Is there any exposure at work that you associate with skin problems?
- Have you seen a doctor for skin problems? (If yes, ask if employee was given a
specific diagnosis).
C. Respiratory Symptoms and History
Ask the employee about respiratory symptoms and ask if the employee associates any symptoms with workplace exposures. Be sure to specifically ask employees about breathing difficulty and coughing.
F - 1
--- Page 66 ---
Do you usually have a cough? If yes, when did the cough start?
Have you seen a doctor for your cough? (If yes, ask if employee was given a specific
- diagnosis).
Have you ever had any symptoms of wheezing when you breathe? If yes, when did the
- wheezing start?
Have you seen a doctor for your wheezing? (If yes, ask if employee was given a specific
- diagnosis).
Have you developed any trouble with your breathing, or do you ever feel short of
- breath? If yes, when did this start?
How often do you have trouble with your breathing?
Does it ever get completely better?
Do you have breathing trouble when walking up a slight hill, or going up a flight of stairs,
- or hurrying on level ground? (If yes, please have employee describe when they have breathing difficulty).
Have you seen a doctor for your breathing problems? (If yes, ask if employee was given a
- specific diagnosis).
Is there any exposure at work that you associate with any of your respiratory 10.
symptoms?
Ask employee if they have a history of any lung disease. Be sure to specifically ask about any
diagnosis of airways obstruction and bronchiolitis obliterans.
Have you ever been diagnosed by a doctor with any lung or respiratory disease? For 11. example: bronchitis, chronic bronchitis, pneumonia, emphysema, asthma, reactive airways disease.
If yes, what is your diagnosis and when were you diagnosed?
If yes, are you currently seeing a physician for this condition?
Have you ever been told by a doctor that you had airways obstruction or bronchiolitis
- obliterans?
Have you ever been told you had a lung disease or lung condition related to workplace
- exposures, including exposure to food flavorings containing diacetyl?
Ask employee about former co-workers who developed respiratory illnesses.
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Appendix G Recommended Engineering and Work Practice Controls
- Engineering and work practice controls are the primary methods for controlling exposures to hazardous flavoring chemicals in the workplace and include local exhaust and general dilution ventilation, isolation of process or source, and restricted access to areas where the chemicals are used or stored.
(cid:183) NOTE: NIOSH has recommended that the use of respiratory protection be mandatory for all mixers and employees entering the mixing room until such time as the production process is reengineered or enclosed to eliminate exposures to flavoring
chemicals.
- CSHOs should investigate the employer’s process to determine whether any of the following recommended engineering and work practice controls, which have been shown to help reduce employee exposures to flavoring chemicals, are being utilized where applicable. CSHOs should also investigate whether other control measures not listed below have been implemented. Recommended controls include:
a. Isolating flavoring production areas from the rest of the plant using walls, doors, or other appropriate barriers.
b. Equipping the production room and other areas where flavorings are handled with a separate ventilation system and ensuring that negative air pressure (0.04 w.g. ± 0.02 w.g. relative to the rest of the plant) is maintained in those areas. This will control the outward migration of contaminated air to adjacent areas of the plant. c. Installing movable exhaust hoods (flexible exhaust ducts) and ensuring the movable LEV can be utilized where powder or liquid flavorings are manually blended, weighed, mixed, poured, transferred, packed, or handled (i.e., tank or blender filling operations, powder dumping operations, drum pouring operations, quality control operations, and compounding operations). The
LEV should at a minimum achieve a capture velocity of 100 feet per minute (fpm) between the emission source and hood opening.
Direct ventilation exhaust outside of the plant in a manner compliant with environmental regulations. d. Reducing the operating temperature of the holding and mixing tanks to that necessary to prevent solidification of the flavoring mixture (normally <120 F). This aids in reducing the volatilization of components not limited to the butter or food flavorings containing diacetyl and their release into the workroom air.
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e. Equipping the head space of flavoring blenders and tanks where flavorings are compounded or held in pure form with local exhaust ventilation or using a closed process to transfer flavorings.
Ensuring the tank opening is achieving a minimum of 100 fpm across the opening of the tank (face). f. Automation of the mixing process. g. Covering the flavoring and finished oil tanks, and ventilating the headspace to reduce emissions into the room. h. Eliminating spillage from overfilling tanks, leaks in seals and fittings, and the manual transfer of materials, all of which have
been identified as sources of emissions. i. Reducing dust exposure during bag dumping by installing commercially available bag dumping stations equipped with local exhaust ventilation (three-sided canopy hood) and bag disposal. j Controlling exposure to flavoring powders during collection or dispensing of final product. Collection bags secured to the outlet and continuous liners used with local exhaust ventilation are options to control exposures to flavoring dust and VOCs. k. Using laboratory hoods in quality control and quality assurance areas where products are compounded or handled and exposure to VOCs or respirable dust may occur and achieving a minimum face
velocity of 100 fpm across the opening of the hood. l. Putting lids on transfer buckets to avoid residual vapor release and/or placing buckets in a ventilated area following transfer; or pumping flavoring from smaller to larger tanks to avoid manual transfer altogether. m. Adding flavorings at room temperature. n. If a flavoring must be heated prior to adding it to the flavoring tank or mixing tank, transferring the flavoring to the tank via a pumping system rather than by manual transfer. o. Providing additional general dilution ventilation using axial flow wall fans.
o Note: During the cold months, adequate tempered make-up air is required. p. Storing volatile flavoring substances in cooled storage areas, with their own air handler that has minimum circulation. q. Establishing and instituting standard procedures for cleaning workplace tanks, containers, and spills. Isolating cleaning areas, and ensuring that vessels used for powdered flavoring chemicals are not cleaned with compressed air. r. When vessel entry is necessary, ensuring compliance with confined spaces entry requirements. s. Using a closed system cleaning process, Clean-In-Place (CIP), for
tanks, and blenders t. Maintaining good housekeeping in any areas where flavoring chemicals are handled.
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Appendix H Safety & Health Precautions for Compliance Staff
General
The CSHO will review the employer’s hazard assessment during the opening conference. Special attention shall be given to the types of personal protective equipment required by the employer for his employees. This will assist the CSHO in determining his or her own PPE needs prior to entering the facility. A CSHO must be vigilant about wearing PPE that is appropriate for the operations being performed at the establishment.
-
CSHOs should avoid all exposure to diacetyl and other food flavoring chemicals to the extent possible.
-
If a CSHO’s exposure is unavoidable during inspection or sampling activities, the CSHO should wear full-face or half-face with organic vapor cartridges and particulate filter and goggles. In addition, he/she should wear protective clothing,
such as disposable coveralls, and protective gloves. If there is any potential for contact with skin from splashes, or particulates, and the CSHO has only a half-face Air-purifying respirator(APR), he or she should also wear chemical splash goggles and/or a face shield to protect the eyes.
- CSHOs must change their cartridges each day they enter a facility, even if they
assume exposure to diacetyl and other food flavoring chemicals is limited. For example if the inspection takes more than one day to complete, then the CSHO must have one set of cartridges for each day.
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Appendix I Guidelines for Outreach Activities
This Appendix summarizes the procedures for conducting outreach activities. Outreach offers employers an opportunity to address potential health hazards before they result in employee illness. Studies have shown that lung dysfunction, restrictive airways obstruction and bronchiolitis obliterians are associated with exposure to flavoring chemicals.
NIOSH Health Hazard Evaluation and Petition for an Emergency Temporary Standard
NIOSH released its final Health Hazard Evaluation Report titled Gilster-Mary Lee Corporation, Jasper, Missouri, in January 2006. This report concluded that workers with inhalation exposure to butter flavoring ingredients, including diacetyl, were at risk for occupational lung disease.
Since the publication of this final report, major news organizations published several articles on employees’ exposure to diacetyl. As a result, on July 26, 2006, the United Food and Commercial Workers International Union (UFCW) and the International Brotherhood of Teamsters (IBT) petitioned the Department of Labor to issue an Emergency Temporary Standard (ETS) for diacetyl (2,3-butanedione, CAS #431-0308). This petition received strong support from several former OSHA and EPA officials, as well as several members of academia and occupational
safety and health experts.
OSHA’s Response
Currently, the Directorate of Standards and Guidance (DSG) is developing a proposed standard covering food flavorings containing diacetyl. Meanwhile the Directorate of Enforcement Programs (DEP) issued a Direction entitled “National Emphasis Program-Microwave Popcorn Processing Plants,” the Directorate of Science, Technology and Medicine (DSTM) issued its Safety and Health Information Bulletin (SHIB) entitled “Respiratory Disease Among Workers in Microwave Popcorn Processing Plants,” and that office is also developing a SHIB specifically addressing flavoring chemicals. DSG also issued a guidance document entitled “Hazard
Communication Guidance for Diacetyl and Certain Food Flavorings containing Diacetyl.”
OSHA Outreach Activity
In an October 12, 2004 Memo, the regions were asked to contact employers within their regions who may have employees exposed to popcorn flavoring chemicals and alert them of NIOSH’s 2002 preliminary findings that workers in the microwave popcorn industry were identified with the disease bronchiolitis obliterans. Now that NIOSH’s 2006 (Gilster-Mary Lee Corporation -Jasper, Missouri. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2000-0401-2991, January 2006) and 2007 (Kanwal NIOSH’s Report on
Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2006-0303-3043, April 2007) reports are out, OSHA will institute the following:
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Directorate of Training and Education
(cid:183) Outreach materials will be developed by DTE and should be used as applicable by the OSHA field staff for their outreach activities. (cid:183) DTE and NIOSH developed a Diacetyl webcast which is now available at: https://learninglink.dol.gov # 0020
Regional Offices
(cid:183) Regional Offices should consult with the States to ensure that they are addressing flavoring related problems during their consultation visits.
Area Offices
(cid:183) OSHA will not begin enforcement activity until at least 60 days after the effective date of this NEP. (cid:183) Each Area Office is also encouraged to mail letters to employers covered by this NEP.
Letters with information about this NEP should also be sent to local hospitals, local
unions, local occupational health clinics, local occupational physicians and professional organizations. (cid:183) News releases through local and national news organizations will increase the awareness of affected employees and health care organizations. (cid:183) Area Offices are also encouraged to contact temporary employment agencies to alert them about this NEP, and request that they provide information about the NEP to any of their clients who are involved with manufacturing flavors containing diacetyl. (cid:183) Compliance Assistance Specialists are encouraged to conduct speeches and or other outreach activities aimed at the health care sector and employer and employee groups.
(cid:183) During outreach activities, employers that manufacture flavorings containing diacetyl should be encouraged to implement the following: (cid:167) Provide respiratory protection for all workers entering the mixing room. (cid:167) Provide eye and skin protection for all workers entering the mixing room. (cid:167) Provide spirometry testing for all affected workers. (cid:167) Educate workers on the hazards of exposure to flavoring chemicals. (cid:183) During outreach activities, employees should be encouraged to do the following: (cid:167) Minimize their exposure to flavoring chemicals while working by using the recommendations outlined in this NEP, and becoming familiar with MSDSs for chemicals they work with.
(cid:167) Use their respirators at all times, especially when mixing. (cid:167) Participate in all employer training and medical testing programs. (cid:167) Report to their doctors any symptoms they develop, such as persistent cough or difficulty breathing, and provide the doctor with a copy of NIOSH’s findings.
(cid:183) During these outreach activities, the Compliance Assistant Specialists (CASs) are
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encouraged to compile a list of frequently asked questions, along with their responses, and utilize these as a reference for future questions.
(cid:183) Regional and Area Offices are encouraged to work with their State OSHA Consultation Office to communicate the goals of this NEP. Consultation Offices are encouraged to conduct outreach activities to support this NEP. Any request for consultative visits from employers as a result of this NEP should be given priority over other consultation requests.
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Appendix J References
- Kreiss, K., et al. Clinical bronchiolitis obliterans in employees at a microwave-popcorn plant.
New Engl. J. Med. 347(5): 330-338, 2002.
-
NIOSH: Gilster-Mary Lee Corporation - Jasper, Missouri. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2000-0401-2991, January 2006.
-
Akpinar-Elci, M., et al. Bronchiolitis obliterans syndrome in popcorn production plant workers. Eur. Respir. J. 24(2): 298-302, 2004.
-
NIOSH Alert: Preventing Lung Disease in Workers Who Use or Make Flavorings.
Department of Health and Human Services (DHHS), National Institute for Occupational Safety and Health (NIOSH) Publication No. 2004-110.
-
Kanwal, R., et al. Evaluation of flavorings-related lung disease risk at six microwave popcorn plants. J. Occup. Environ. Med. 48(2): 149-157, 2006.
-
Centers for Disease Control and Prevention. Fixed obstructive lung disease among workers in the flavoring-manufacturing industry --- California, 2004 - 2007. MMWR Weekly 56(16): 389-393, 2007.
-
Kanwal NIOSH. Report on Severe Fixed Obstructive Lung Disease in Workers at a Flavoring Manufacturing Plant. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2006-0303-3043, April 2007. 8, NIOSH, Interim Report. National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluation Report #2007-0033, March 29, 2007.
-
Hendrick, DJ. 2008. “Popcorn Worker’s Lung” in Britain in a man making potato crisp
flavoring. Thorax. 63:267-268.
-
van Rooy, F., et al. Bronchiolitis Obliterans Syndrome in Chemical Workers Producing Diacetyl for Food Flavorings. Am J of Respir and Crit Care Med. Sep 1;176(5): 498-504, 2007.
-
Kreiss, K., Flavoring-related bronchiolitis obliterans. Curr. Opin. Allergy Clin. Immunol 7:162-167, 2007
-
Kanwal R., Bronchiolitis obliterans in workers exposed to flavoring chemicals. Curr Opin Pulm Med. 2008 Mar;14(2):141-6
-
Simoes, E., et al. Fixed Obstructive Lung Disease in Workers at a Microwave Popcorn Factory – Missouri 2000-2002. MMWR 51(16): 345-347, 2002.
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-
Chan A, Allan R,. Bronchiolitis obliterans: an update. Current Opinion in Pulmonary Medicine. Mar;10(2): 133-141, 2004.
-
King, T., Jr., Overview of bronchiolitis. Clin. Chest Med. 14(4): 607-610, 1993.
-
Kreiss, K. Occupational Bronchiolitis Obliterans Masquerading as COPD. Am J of Resp and Crit Care Med. Sep 1;176(5): 498-504, 2007.
-
FEMA: Respiratory Health and Safety in the Flavor Manufacturing Workplace. The Flavor and Extract Manufacturing Association of the United States, August 2004.
-
National Library of Medicine: Hazardous Substances Data Bank: Diacetyl. http://toxnet.nlm.nih.gov (Retrieved November 7, 2006.)
-
OSHA Safety and Health Topics: Chemical Sampling Information: Diacetyl. http://www.osha.gov/dts/ampling/data/CH_231710.html (Retrieved November 27, 2006.)
-
Riordan, J.F. Arginyl residues and anion binding sites in proteins. Mol. Cell. Biochem. 26(2): 71-92, 1979.
-
Borders, C.L., Jr., et al. Essentiality of the active site arginine residue for the normal catalytic
activity of Cu, Zn superoxide dismutase. Biochem. J. 230(3): 771-776, 1985.
-
Boggaram, V. and Mannervik, B. Essential arginine residues in the pyridine nucleotide binding sites of glutathione reductase. Biochim. Biophys. Acta 701(1): 119-126, 1982.
-
Hubbs, A.F., et al. Necrosis of nasal and airway epithelium in rats inhaling vapors of artificial butter flavoring. Toxicol. Appl. Pharmacol. 185(2):128-135, 2002.
-
Hubbs A.F., et al. Respiratory Toxicologic Pathology of Inhaled Diacetyl in Sprague-Dawley Rats. Toxicologic Pathology. 20:1533-1601, 2008
-
Morgan D.L., et al. Respiratory Toxicity of Diacetyl in C57B1/6 Mice. Tox Sci. 103 (1): 169-180, 2008
-
Boylstein, R., et al. Diacetyl emissions and airborne dust from butter flavorings used in microwave popcorn production. J. Occup. Environ. Hyg. 3(10): 530-535, 2006.
-
NEIHS. Chemical Information Review Document for Artificial Butter Flavoring and Constituents Diacetyl [CAS No. 431-03-8] and Acetoin [CAS No. 513-86-0]. January 2007 http://ntp.niehs.nih.gov/ntp/htdocs/Chem_Background/ExSumPdf/Artificial_butter_flavoring.pdf [Accessed May 20, 2008]
-
Arts, J.H., et al. Subacute (28-day) toxicity of furfural in Fischer 344 rats: a comparison of the oral and inhalation route. Food Chem. Toxicol. 42(9): 1389-1399, 2004.
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-
Mishra, A., et al. Pathological and biochemical alterations induced by inhalation of furfural vapor in rat lung. Bull. Environ. Contam. Toxicol. 47(5): 668-674, 1991.
-
Anibarro, B., et al. Occupational asthma induced by garlic dust. J. Allergy Clin. Immunol. 100(6 Pt. 1): 734-738, 1997.
-
Fraj, J., et al. Occupational asthma induced by aniseed. Allergy 51(5): 337-339, 1996.
-
Alleman, T. and Darcey, D.J. Case report: bronchiolitis obliterans organizing pneumonia in a spice process technician. J. Occup. Environ. Med. 44(3): 215-216, 2002.
-
Ando, S., et al. NSIP in a curry sauce factory worker. Thorax 61(11): 1012-1013, 2006.
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Virginia Minimum Wage Enforcement GuidelinesDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER ONE MINIMUM WAGE ACT
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Revised July, 2019Minimum Wage – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Minimum Wage – Page 3
- 00 Virginia Minimum Wage Act
A.
Coverage Virginia’s Minimum Wage Act is set forth in §§ 40.1-28.8 through 40.1-28.12 of the Code of Virginia. In general, it applies to all private industry employers employing 4 or more covered employees and who do not fall under the provisions of the federal Fair Labor Standards Act of 1938. Public employees also are not covered (§ 40.1-2.1).
The current Virginia minimum hourly wage (as of July 24, 2009) is $7.25 per hour.
Future increases will occur when the federal minimum hourly wage increases (§ 40.1-28.10). The Virginia Minimum Wage Act contains no overtime requirements.
B.
Definitions
- “Employer” includes any individual, partnership, association, corporation, business trust, or any person or groups of persons acting directly or indirectly in the interest of an employer in relation to an employee.
- “Employee” includes any individual employed by the employer, unless a specific exemption is provided.
- “Wages” means legal tender of the United States or checks or drafts on banks negotiable into cash on demand or upon acceptance at full value; provided, wages may include the reasonable cost to the employer of furnishing meals and for lodging to an employee, if such board or lodging is customarily furnished by the employer, and used by the employee. (1) “Reasonable cost” cannot exceed the actual cost to the employer. In deciding whether wage credits for facilities are in amounts permissible under § 40.1-28.9(C), experience and judgment must be used. It should be kept in mind that the “reasonable cost” is only met when it does not include a profit to the employer. The cost of furnishing lodging and/or meals must be established based upon available records. The employer has the burden of establishing such cost and must maintain adequate records to support a determination (§ 40.1-6 (7)). .
An employer may not take a credit where no cost is incurred. For example, when a meal is made available to an employee, but is not consumed, and subsequently retained in the employer’s inventory for service to customers, no credit may be taken. . a.
Meals -- Food Service Establishments The “reasonable cost” of meals furnished by a food service establishment to its employees includes only the actual cost to the employer of the food, its preparation, and related supplies. Salary or wage costs, as distinguished from material or supply costs, may be claimed only to the extent that such salary or wage costs are shown to be directly attributable to the cost of providing meals to employees. If food preparation/serving employees of a food Minimum Wage – Page 4 service establishment would be paid the same rate of pay even if meals were not provided to the employees of the establishment, the wage costs cannot be included in determining reasonable cost.
Conversely, if it were necessary to hire extra personnel or pay higher wages to existing employees in order for them to assist in furnishing meals to employees, such extra expense would be a legitimate cost which could be included in determining the “reasonable cost” of meals.
Costs which a food service employer incurs regardless of whether the employees were furnished meals may not be included in determining the “reasonable cost.” In a food service establishment, items such as employee insurance, payroll taxes, menus, decorations, other operating supplies, laundry, telephone, maintenance services, advertising and promotion, building and equipment rental, licenses and taxes, insurance and depreciation, franchise cost, and general administrative costs are a part of the overall cost of the operation of the employer’s business establishment which may not be charged to the reasonable cost of employees’ meals. . b.
Meals -- Non-food Service Establishments Determination of the “reasonable cost” of meals furnished to employees of an establishment which is not a food service establishment involve different criteria for expenses for which an employer may take credit. For example, where meals are provided to employees of a non-food-service establishment by a catering service and there are no special facilities wherein meals are consumed, the actual cost of the catering service, assuming no rebate to the employer, would be the “reasonable cost.” In more complex situations where dining areas are provided, the factors discussed in a. above must be considered in making a determination of the “reasonable cost” of meals furnished to employees of a nonfood-service establishment. c.
Lodging Employers taking credit for housing as part of wages must show that the amounts charged are not more than the actual cost to the employer. If the actual cost of providing lodging is more than its Minimum Wage – Page 5 established rental value, the rental value shall be deemed to be the reasonable cost of lodging.
Adequate Depreciation: Depreciation is a concept primarily used in and extensively regulated under the tax laws. Depreciation is applicable to certain capital goods (e.g. buildings, vehicles, machines, etc.). It is never applicable to land. Depreciation is not more than the amount of depreciation actually claimed and allowed under the tax laws for the property in question. It should be noted the amount of depreciation allowable on any property may vary from year to year. If the employer declines to provide tax returns or similar evidence as to the claim and allowance of depreciation under the tax laws, no allowance will be made. d.
Unlike federal law which includes the language “other facilities, ” as being credited to the federal hourly minimum rate, Virginia’s Minimum Wage only allows meals and lodging to be credited toward the $7.25 minimum. As a result, such items as tuition, child care, transportation, etc. cannot be substituted. Wages can only be paid in the form of cash, check, meals, and lodging.
C.
Exemptions The following individuals are not covered by the provisions of the Act:
Any person employed as a farm laborer or farm employee;
Any person employed in domestic service or in or about a private home or in an eleemosynary (charitable) institution primarily supported by public funds; (1) The term “domestic service” employment refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, and chauffeurs of automobiles for family use. An individual could be working for an employer in two different capacities be covered by the Virginia minimum in one instance and not the other. For example, “John Doe” works for “X” employer as a dishwasher in his restaurant where he has to receive the current $7.25 hourly minimum. “John Doe” also cuts “X” employer’s grass at his home where he does not have to receive the minimum. Persons performing work in connection with the home of an employer but not related to his business, trade, or profession would be exempted. (2) Persons employed by charitable institutions supported by public funds are Minimum Wage – Page 6 exempted from receiving the Virginia minimum. Just being recognized as a charitable institution would not qualify; public funds have to be the primary source of funding for the charitable institution. Public funds are identified as moneys received from the federal government, the state, or any of the local governing bodies of the state.
Any person engaged in the activities of an educational, charitable, religious, or nonprofit organization where the relationship of an employer-employee does not in fact exist, or where the services rendered to such organizations are on a voluntary basis; (1) This exemption has caused confusion especially where churches are involved. If the governing body of a church hires such persons as bookkeepers, janitors, groundsmen, etc. and an employment relationship exists, this exemption does not apply. There is no definition that solves all problems as to the limitations of the employer-employee relationship. The determination of an employment relationship cannot be based on isolated factors or upon a single characteristic or technical concepts, but depends upon the circumstances of the whole activity, including the underlying economic reality. In general, an employment relationship exists where an individual follows the usual path of an employee and is dependent on the business which he serves. (2) Individuals who volunteer their services to educational, charitable, religious, or nonprofit organizations are exempt from Virginia’s minimum.
Individuals who volunteer or donate, usually on a part-time basis, without contemplation of pay are not considered employees of these educational, charitable, religious, or nonprofit organizations. For example, members of civic organizations may help out in a sheltered workshop; women’s organizations may send members or students into hospitals or nursing homes to provide certain services for the sick or the elderly; mothers may assist in a school library or cafeteria as a public duty to maintain effective services for their children; or fathers may drive a school bus to carry a football team or band on a trip. Similarly, individuals may volunteer to perform such tasks as driving vehicles or folding bandages for the Red Cross, working with retarded or handicapped children or disadvantaged youth, helping youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working mothers, soliciting contributions or participating in benefit programs for such organizations and volunteering other services needed to carry out their charitable, educational, or religious programs. The fact that services are performed under such circumstances is not sufficient to create an employer-employee relationship. .
Caddies on golf courses;
Minimum Wage – Page 7
Traveling salesmen or outside salesmen working on a commission basis; taxicab drivers and operators; .
Traveling or outside salesmen are employees who are customarily and regularly engaged away from the employer’s place or places of business to obtain orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer. The employer in return must compensate the salesman on a commission basis for the exemption to apply.
A person under the age of 18 in the employ of his father, mother, or legal guardian;
Note: The father, mother, or legal guardian must be the owner or part-owner (50% or more) of the business for his/her children to qualify for this exemption. .
Any person confined in any penal, corrective, or mental institution of the state, or any of its political subdivisions or admitted to a state hospital or training center operated by the Department of Behavioral Health and Development Services;
Any person employed by a summer camp for boys, girls, or both boys and girls;
Note: Includes all types of summer camps regardless of the method of funding: private, public, educational, charitable, religious, or nonprofit. The exemption, however, only extends to summer camp activities. Many organizations such as the YMCA, YWCA, Boy Scouts of America, Girl Scouts of America, perform activities throughout the year. Only the activities performed for these and similar organizations by their summer camp employees are exempt.
Any person under the age of 16, regardless of by whom employed; . 10.
Any person who normally works and is paid based on the amount of work done.
Note: This exemption applies to businesses recognized in the industry for paying individuals by a piece rate rather than an hourly rate. 11.
Any person whose employment is covered by the Fair Labor Standards Act of 1938, as amended;
Minimum Wage – Page 8 The Fair Labor Standards Act (FLSA) covers the following: : (1) Enterprises engaged in commerce or in the production of goods for commerce that has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person whose annual gross volume of sales made or business done is not less that $500,000 (exclusive of excise taxes at the retail level that are separately stated). (2) Enterprises engaged in the operation of a hospital, or institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit) . (3) Public agencies.
NOTE: An employer who meets either of the above listed coverage requirements of the FLSA would be exempt from the provisions of the Virginia Minimum Wage Act. The fact that FLSA may exempt an employer from one or more of its minimum wage, overtime, child labor or record keeping provisions does not abolish the coverage status. For example, employers operating seasonal recreational establishments, such as King’s Dominion and Busch Gardens, are provided an exemption from the minimum wage and overtime standards of FLSA but are still under the jurisdiction of FLSA and have to abide by its child labor and record keeping requirements. Thus, establishments which meet the coverage requirements of the FLSA, whether bound by all of its provisions or not, would be exempted from coverage under the Virginia Minimum Wage Act.
Do not attempt to determine for an employer or for an employee if they are under the jurisdiction of FLSA. You should advise them to contact the closest office of the Wage and Hour Division of the U. S. Department of Labor. 12.
Any person whose earning capacity is impaired by physical or mental deficiency; .
Note: If an employer states to you he is not paying the Virginia minimum because of this exemption, unless such deficiency is evident beyond all reasonable doubt, this would be a determination made only by a physician, not by you or the employer. The burden of proof is the employer’s responsibility. Unless the employer can document that the employee has a mental or physical deficiency that substantially limits the employee from performing the same amount of work in the same amount of time as other employees in the same job capacity, the exemption cannot be claimed.
Minimum Wage – Page 9 13.
Students participating in a bona-fide educational program;
Note: To claim this exemption, the student would have to be enrolled in a work-training program and have on file a Work-Training Student Learner Agreement. 14.
Any person employed by an employer who does not have four or more persons employed at any one time; provided that husbands, wives, sons, daughters, and parents of the employer shall not be counted in determining the number of persons employed; .
Note: (1) Only the relatives described would be deducted to determine whether the employer has four or more persons employed. For example, if an employer who does not come under the FLSA has four persons in his employ and two of them were under 16 and the remaining two qualified as employees under the Virginia Minimum Wage Act, the employer would have to pay the two qualifying employees the Virginia hourly minimum although the two under 16 would be exempted. (2) Husbands, wives, sons, daughters, and parents of the employer are not counted in determining the number of employees; however, they would have to receive the Virginia minimum unless exempted elsewhere under the Act, i.e., son is under 16 years of age or parent is 65 or older. . (3) A Virginia employer who has employees working in Virginia and employees working in another state under the same corporate status and the employees total four or more, these employees would have to receive the hourly minimum, unless exempted elsewhere under the Act. There is no requirement that the “four or more persons employed at any one time” must also be employed in Virginia. 15.
Any person who is less than 18 years of age and who is currently enrolled on a full-time basis in any secondary school, institution of higher education or trade school and is in a work-study program or its equivalent at the institution at which he or she is enrolled as a student provided the person is not employed more than 20 hours per week; . 16.
Any person of any age who is currently enrolled on a full-time basis in any secondary school, institution of higher education or trade school and is in a work-study program or its equivalent at the institution at which he or she is enrolled as a student; .
Minimum Wage – Page 10 17.
Any person who is less than 18 years of age and who is under the jurisdiction and discretion of a juvenile and domestic relations court; or
- Any person who works as a babysitter for fewer than 10 hours per week. .
D.
Tips
Definition: A “tipped employee” is any employee engaged in an occupation in which the individual customarily and regularly receives tips.
Burden of Proof: The burden of proving the amount of tips received by tipped employees rests with the employer.
Tipped Duties Versus Non-tipped duties: The tip provision applies on an individual employee basis. Thus, an employer may claim the tip credit for some employees even though the employer cannot meet the requirements for others. In establishments where employees perform a variety of different jobs, an employee’s status as a “tipped employee” will depend on the total fact situation and will be determined on the basis of such employee’s activities over the entire workweek. When an individual is employed in a tipped occupation and a non-tipped occupation (dual jobs), the tip credit is available only for the hours spent in the tipped occupation. Some allowance is made for the time spent related to the tipped occupation, even though such duties are not be themselves directed toward producing the tips such as maintenance and preparatory or closing activities. For example, a waiter/waitress who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tip occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the waiter/waitress and are generally assigned to them. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.
Retention of Tips by Employee: All tips received by a “tipped employee” must be retained by the employee except to the extent that there is a valid pooling arrangement. The employer cannot require a tipped employee to turn any portion of his tips over to him.
Tip Pooling: The requirement that an employee must retain all tips does not preclude tip splitting or pooling arrangements among employees who customarily and regularly receive tips. The following occupations have been recognized as falling within the eligible category: waiters/waitresses, bellhops, counter personnel who serve customers, busboys/girls (server helpers), service bartenders. .
A valid tip-pooling arrangement cannot require employees who actually receive tips to contribute a greater percentage of their tips than is customary and reasonable. For enforcement purposes, DOLI will not question contributions to a Minimum Wage – Page 11 pool where the net amount of tips contributed does not exceed 15 percent of the employee’s tips. However, only those tips in excess of the hourly minimum may be taken for a pool. If such requirements are met, it is not necessary that the pooling be voluntarily consented to by the employees involved.
Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements. The following employee occupations would therefore not be eligible to participate: janitors, dishwashers, chefs or cooks, laundry room attendants.
It is not the intent of DOLI to prevent tipped employees from deciding, free from any coercion whatever and outside of any formalized arrangement or a condition of employment, to share their tips with whichever coworkers they please. Tips given to such co-workers, however, cannot be used by the employer as a credit toward the hourly minimum.
Tips Charged on Credit Cards: Where tips are charged on credit cards, DOLI will not question the reduction of the credit card tips paid over to the employee if the amount deducted is no greater than the percentage charged by the credit card company. For example, where a credit card company charges an employer 5 percent on all sales charged to its credit service, the employer may pay the employee 95 percent of the tips.
In some situations, a credit card transaction is not collected from a credit card company. In such cases, the employer is not required to pay a tipped employee the amount of tips specified on the credit card slip. Of course, this assumes the inability to collect is not a result of the employer’s failure to submit the slip for reimbursement, etc. .
The employer may recover from a tipped employee the tip amount stated on the uncollected credit card slip if the tip amount has been paid to the tipped employee. This may be accomplished either by payroll deduction or by out-of-pocket reimbursement by the employee to the employer. Written authorization is not needed. However, the amount of uncollected credit card tips recovered from the employee must not reduce the tipped employee below the hourly minimum.
The amount of tips to be recovered which would cut into the claimed tip credit is unrecoverable by the employer.
Where there are tip pools, tip pool recipients are responsible for reimbursing the employer for the share of tips from an uncollected credit card transaction which was allocated into the tip pool. The tipped employee who contributed to the tip pool cannot be held accountable for tips which are not in the individual’s possession.
E.
Accepting Claims Minimum Wage – Page 12 Claims must be in writing and must provide sufficient information to indicate an alleged violation.
F.
Investigation
Interviews complainant.
Interviews employer
Interviews co-workers/witnesses if necessary.
Conducts records review/audit.
Representative will determine the validity of the claim and amount due if valid; calculate the exact amount of back minimum wages due employee(s).
G.
Informal Resolution Representative will attempt informal resolution
Discuss findings and determination with employer.
Inform employer: (1) Payment is due and must be paid immediately. (2) Criminal charges can be brought by DOLI. (3) Employee(s) will be advised to seek restitution of back wages plus applicable interest through the courts.
H.
Employer Refuses to Comply
Determine and discuss with Supervisor the merits of bringing criminal charges.
If criminal action is chosen, contact the Commonwealth’s Attorney for assistance.
If the Commonwealth’s Attorney refuses, seek assistance from Supervisor.
Advise the employee(s) that he or she or an attorney acting on their behalf would have to seek restitution of back minimum wages through the appropriate court.
Upon approval of Supervisor, may proceed to collect back minimum wages by having the employee(s) complete a “Statement of Claim for Unpaid Wages” form and proceed in accordance with the Payment of Wage segment of this manual.
Virginia Equal Pay Enforcement GuidelinesDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER THREE EQUAL PAY
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Last Revised January 2000 Equal Pay – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Equal Pay – Page 3
- 00, Equal Pay Irrespective of Sex
A. Coverage
The Virginia Equal Pay Irrespective of Sex Act is set forth in § 40.1-28.6 of the Code of Virginia. The Act makes the requirements of equal pay for equal work applicable to private industry employees not covered by the federal Fair Labor Standards Act of 1938, as amended. Please refer to the Virginia Minimum Wage Act portion of this manual for clarification of federal coverage under FLSA.
B. Summary of Act
The Act’s substantive provisions and requirements are substantially the same as the federal Equal Pay Act. It prohibits discrimination between men and women with regard to their pay and fringe benefits, including pensions. Employers providing retirement benefits to their workers must pay equal benefits to male and female retired workers even though the cost to the employer of funding the program may be greater for one sex than the other. Employees of either sex must receive the same pay for performing jobs which require equal skill, effort, and responsibility, and which are performed under similar responsibility. The Act provides protection for equal pay only, not any other discriminatory charge.
Different wages and fringe benefits may be paid by an employer under the Act only in support of one of the following systems:
-
Seniority system;
-
Merit system;
-
System paying wages based on quantity or quality of production; or
-
A differential pay system based on any other factor other than sex.
The federal Equal Pay Act is administered and enforced by the Equal Employment Opportunity Commission (EEOC).
C. Case Assignment
-
Before accepting a claim under this section, have the inquirer contact the federal Equal Employment Opportunity Commission to determine if the employer comes within the purview of the federal Fair Labor Standards Act of 1938.
-
Regional or Central Office receives complaint for alleged differential in pay because of sex.
-
Claims must be in writing and must provide sufficient information to Equal Pay – Page 4
indicate an alleged violation.
C. Investigation
-
Interviews complainant.
-
Interviews employer.
-
Interviews co-workers/witnesses if necessary.
-
Reviews job descriptions of employees.
-
Reviews employer’s promotional pay policies.
-
Reviews any other policy employer may have such as one relating to seniority, pay increases and/or payment systems based on quantity or quality of work performed.
-
Collects and documents all facts and data to support validity of claim; calculates the amount of wages due claimant based on the difference between what the claimant received and what other employees of opposite sex received for same work performance.
D. Informal Resolution
Representative will attempt informal resolution
- Discuss findings and determination with employer.
2. Inform employer
(1) Wage differential is due and must be paid immediately; also, must cease any other existing or future wage discrepancies.
(2) Employee(s) will be advised to seek restitution of wages.
(3) Employee will also be advised that he or she may seek damages equating to two times the amount of wages owed.
E. Employer Refuses to Comply
Representative should advise the employee of the following
-
DOLI does not have the authority to pursue collection of the moneys owed through the courts. Equal Pay – Page 5
-
The employee may institute his/her own action in the appropriate general district or circuit court.
-
The employee must institute a court action within two years of the date the wage discrepancy was noted and documented.
Interpretation of Volunteer Firefighters and VOSH StandardsDoc ID: Letter
--- Page 1 ---
VOSH PROGRAM DIRECTIVE: 06-011A ISSUED: May 15, 2008
SUBJECT: Letter of Interpretation Concerning Volunteer Firefighters and 16 VAC 25-60-10 of the
ARM
A. Purpose.
This directive transmits to field personnel an interpretation of the definition of “Public employee” in
section16 VAC 25-60-10 of the VOSH Administrative Regulations Manual (ARM) and the applicability of VOSH standards to volunteer firefighters.
B. Scope.
This directive applies VOSH-wide.
C. Reference.
Letter from Floyd E. Green to Commissioner Carol Amato, dated on October 2, 1987.
VOSH Standard Interpretation, dated on December 7, 1987.
D. Cancellation.
VOSH Program Directive 06-011 (May 18, 1988).
E. Action.
Directors and Managers shall assure that the guidelines in the attached standard interpretation letter are followed in inspections covering volunteer firefighters.
--- Page 2 ---
D. Background.
See attached letter requesting a standard interpretation, and the agency response. Please be advised that the attached 1987 letters reference section 13.1 of an earlier version of the VOSH Administrative Regulations Manual (ARM). Former section 13.1 is now covered by 16 VAC 25-60-10 of the current
ARM.
E. Effective Date
May 15, 2008.
C. Ray Davenport Commissioner
ATTACHMENTS: Letter from Floyd E. Green to Carol Amato dated October 2, 1987.
VOSH Standard Interpretation dated December 7, 1987.
DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner – Programs VOSH Directors and Managers Cooperative Programs Director and Manager VOSH Compliance and Cooperative Programs Staff
Legal Support and IMIS Staffs OSHA Region III and Norfolk Area Offices
2
Virginia Government Penalty PoliciesDoc ID: State
--- Page 1 ---
DOLI
VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 02-028A ISSUED: September 19, 2019
SUBJECT: State and Local Government Penalties
Purpose: This Directive establishes policies and procedures for implementation of VOSH penalties in state and local government.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application; and it is not being enforced as having the force of law.
Scope: This Directive applies VOSH-wide.
Reference: VOSH Directive 12-003H [and successor], Administrative Regulations Manual for the VOSH Program
VOSH Directive 09-001, VOSH Field Operations Manual [and successor]
§16VAC25-60-260 [and successor]
Notice: Notwithstanding the effective date of this directive, §16VAC25-60-260 was adopted by the Virginia Safety and Health Codes Board as authorized by Va. Code §§40.1-22(5) and 2.2-4006.A.4(c) on November 30, 2017, and published in the Virginia Register on October 1, 2018 with a 30 day comment period and an effective date of November 1, 2018. The above named regulation became fully effective and enforceable by the VOSH Program under the terms of the regulation on November 1, 2018.
Cancellation: VOSH Program Directive 02-028, December 1, 2018
Effective Date: September 19, 2019
Expiration Date: Not Applicable – remains in effect until cancelled or superseded.
Action: Directors and Managers shall ensure that policies and procedures
1
[TABLE 1-1] Notice: Notwithstanding the effective date of this directive, §16VAC25-60- | | 260 was adopted by the Virginia Safety and Health Codes Board as | authorized by Va. Code §§40.1-22(5) and 2.2-4006.A.4(c) on | November 30, 2017, and published in the Virginia Register on | October 1, 2018 with a 30 day comment period and an effective | date of November 1, 2018. The above named regulation became | fully effective and enforceable by the VOSH Program under the | terms of the regulation on November 1, 2018.
[/TABLE]
--- Page 2 ---
established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Director of Cooperative Programs Assistant Commissioner VOSH Compliance & Cooperative VOSH Directors and Managers Programs Staffs OSHA Region III & OSHA Norfolk Area VOSH Legal Support & OIS Staffs Offices
When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the
following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Assistant Commissioner
Area Director Regional Director VOSH Program Director
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO
OSHA Directives VOSH Program Directives
2
--- Page 3 ---
I. Background
Public Sector Penalty Legislation.
Senate Bill 607 was passed by the Virginia General Assembly and signed into law by Governor Terry McAuliffe to direct the Virginia Safety and Health Codes Board to adopt regulations for the issuance of proposed penalties to the Commonwealth, its agencies, political subdivisions, or any public body. The law became effective July 1, 2016.
Information can be found at: https://lis.virginia.gov/cgi-bin/legp604.exe?ses=161&typ=bil&val=sb607
Public Sector Penalty Regulation.
The Virginia Safety and Health Codes Board adopted a proposed regulation on February 16, 2017, on public sector penalties amending the VOSH Administrative Regulations Manual (ARM), 16VAC25-60-260. The proposed regulation would allow issuance of penalties to public sector employers for willful, repeat, and failure-to-abate violations, as well as serious violations that cause a fatal accident or are classified as “high gravity”.
A public hearing was held on October 26, 2017, and the 60 day written comment period ended November 3, 2017. The Board adopted a final regulation on November 30, 2017. The final regulation was published in the Virginia Register of Regulations on October 1, 2018, with a 30 day comment period.
The final regulation takes effect on November 1, 2018, and will be applied to VOSH inspections opened on or after December 1, 2018.
Progress on the final regulation can be tracked on the Virginia Regulatory Town Hall at: http://townhall.virginia.gov/L/ViewAction.cfm?actionid=4681
Based on an analysis of historical data, approximately five percent (5%) of the serious violations issued in the private and public sectors are classified as high gravity (high severity and greater probability).
VOSH estimates that approximately 15 high gravity serious, 3 willful and 5 repeat violations will be issued in state and local government per year.
VOSH Maximum Penalties The Department proposed HB 1883 and companion bill SB 1542 to increase the maximum statutory VOSH civil penalties by 78.15%. Virginia’s legislation mirrors the 2015 increase in OSHA penalties. The legislation passed both houses of the General Assembly by unanimous vote and was signed into law. The legislative
history can be viewed at: http://lis.virginia.gov/cgi-bin/legp604.exe?171+sum+HB1883
3
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The statute also requires the Commissioner of Labor and Industry to annually increase the maximum civil penalty amounts, starting August 1, 2018, by an amount that reflects the percentage increase, if any, in the Consumer Price Index – Urban (CPI-U) from the previous calendar year.
Information on current maximum VOSH penalties can be found at: https://www.doli.virginia.gov/vosh-penalty-increases/
II. Definitions
From 16VAC25-60-10: "Failure to abate" means that the employer has failed to correct a cited violation within the period permitted for its correction.
"Other [than serious] violation" means a violation which is not, by itself, a serious violation within the meaning of the law but which has a direct or immediate relationship to occupational safety or health. "Public employer" means the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.
"Public employee" means any employee of a public employer. Volunteer members of volunteer fire departments, pursuant to § 27-42 of the Code of Virginia, members of volunteer rescue squads who serve without pay, and other volunteers pursuant to the Virginia State Government Volunteers Act are not public employees. Prisoners confined in jails controlled by any political subdivision of the Commonwealth and prisoners in institutions controlled by the Department of Corrections are not public employees unless employed by a public employer in a work-release program pursuant to § 53.1-60 or § 53.1-131 of the Code of Virginia.
"Repeated violation" means a violation deemed to exist in a place of employment that is substantially similar to a previous violation of a law, standard, or regulation that was the subject of a prior final order against the same employer. A repeated violation results from an inadvertent or accidental act, since a violation otherwise repeated would be willful.
"Serious violation" means a violation deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. The term "substantial probability" does not refer to the likelihood that illness or injury will result from the violative condition but to the likelihood that, if illness or injury does occur, death or serious physical harm will be the result.
4
--- Page 5 ---
"Willful violation" means a violation deemed to exist in a place of employment where (i) the employer committed an intentional and knowing, as contrasted with inadvertent, violation and the employer was conscious that what he was doing constituted a violation; or (ii) the employer, even though not consciously committing a violation, was aware that a hazardous condition existed and made no reasonable effort to eliminate the condition.
From 1904.46
Establishment. An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc., that either supervise such activities or are the base from which personnel carry out these activities.
- 46(1)
Can one business location include two or more establishments? Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single
location to be separate establishments. An employer may divide one location into two or more establishments only when:
-
46(1)(i) Each of the establishments represents a distinctly separate business;
-
46(1)(ii) – not included for purposes of this policy.
-
46(1)(iii) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and
-
46(1)(iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
III. Summary
16VAC25-60-260.E. provides that
“The commissioner shall have authority to propose civil penalties to public employers for willful, repeat, and failure-to-abate violations in accordance with subsections I and J of § 40.1-49.4, and for serious violations that cause
5
[TABLE 5-1] Establishment. An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and simila operations, the establishment is represented by main or branch offices, terminals, stations, etc., that either supervise such activities or are the base from which personnel carry out these activities.
[/TABLE]
[TABLE 5-2] Can one business location include two or more establishments? Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments. An employer may divide one location into two or more establishments only when:
[/TABLE]
[TABLE 5-3] 1904.46(1)(i) Each of the establishments represents a distinctly separate business;
[/TABLE]
[TABLE 5-4] 1904.46(1)(iii) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and
[/TABLE]
[TABLE 5-5] 1904.46(1)(iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
[/TABLE]
--- Page 6 ---
death to an employee or are classified as high gravity in accordance with subsection H of § 40.1-49.4.”
Except as otherwise provided in this directive, the provisions of Chapter 11,
Penalties, of the VOSH Field Operations Manual shall apply to the calculation of proposed penalties issued to state and local government employers (e.g., gravity based penalty calculation, penalty reduction factors).
IV. Inspection Guidance
A. Applicability.
From 16VAC25-60-10
"Public employer" means the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.”
The Department considers authorities and instrumentalities such as, but not
limited to, the Washington Metropolitan Area Transit Authority (WMATA), the Washington Metropolitan Airports Authority (MWAA), and the Greater Richmond Transit Company (GRTC) to be public employers covered by the state and local government penalty regulation in 16VAC25-60.
B. Violation Types.
16VAC25-60-260.E. provides that
“The commissioner shall have authority to propose civil penalties to
public employers for willful, repeat, and failure-to-abate violations in accordance with subsections I and J of § 40.1-49.4, and for serious violations that cause death to an employee or are classified as high gravity in accordance with subsection H of § 40.1-49.4.”
Penalties will not be issued for serious violations that are classified as non-
high gravity (i.e., other than high severity and greater probability).
Penalties will not be issued for other-than-serious violations.
Penalties for willful, repeat, and failure to abate violations may be issued in
cases where the original violation was classified as serious (both high gravity and non-high gravity) or other-than-serious.
6
--- Page 7 ---
C. VOSH Gravity Based Penalty
Reference: VOSH Field Operations Manual, Chapter 11, Penalties VOSH generally follows OSHA’s Gravity Based Penalty (GBP) methodology
for calculating proposed penalties, which includes an assessment of the “Severity” of the hazard cited and the “Probability” that an injury or illness would result from the cited hazard.
“Severity” is classified as High, Medium or Low.
“Probability” is classified as Greater or Lesser.
There are six main Gravity Based Penalty levels for proposed “serious” violations:
High Severity/Greater Probability [High Gravity] High Severity/Lesser Probability Medium Severity/Greater Probability Medium Severity/Lesser Probability Low Severity/Greater Probability
Low Severity/Lesser Probability
Only serious violations classified as “High Gravity” (high severity and greater probability) will be issued to state and local government employers with a penalty.
D. Penalty Reduction Factors
As provided for in Va. Code §40.1-49.4.A.4.(a), prior to issuing a proposed penalty, VOSH penalty calculation procedures are required to take into
account the
- gravity of the violation,
- size of the employer’s business,
- good faith of the employer, and
- history of previous violation
Reference: VOSH Field Operations Manual, Chapter 11, Penalties, for
procedures regarding gravity, size, good faith, and history, except as noted below.
A violation (serious, willful, repeat, or failure to abate) related to the cause
of a fatal accident is classified as “high severity/greater probability” and 7
--- Page 8 ---
will be issued with the maximum statutory penalty. No reductions for good faith, history, or size will be applied.
A violation (serious, willful, repeat, or failure to abate) related to the cause of a non-fatal but serious accident which results in serious physical harm to the employee is classified as “high severity/greater probability” will be issued with the maximum statutory penalty. No reductions for good faith, history or size will be applied.
Size of the Employer.
The maximum allowable size reduction is 70%, but size is determined by the
total number of employees employed by the governing body (e.g., total employment in state government; total employment in county/city government).
Number of Employees Percent Reduction
1-25 70% 26-100 40%
101-250 20% 251 or more zero
No state government agency will receive a penalty reduction for size.
Most local government agencies will not receive a penalty reduction for size, unless total government employment for the city or county is 250 or fewer employees.
Good Faith of Employer
A penalty reduction of up to 25 percent is permitted for certain high gravity serious violations in recognition of an employer’s “good faith” in increments
of 0%, 5%, 10%, 15%, 20% and 25%.1
The maximum allowable good faith reduction for written safety and health programs is 10%.
1 Although the VOSH FOM provides that no good faith penalty reduction is permitted for private sector inspections that result in a high gravity serious violation; a good faith penalty reduction will be available to state and local government employers in situations where the high gravity serious violation did not result in a fatal accident or serious physical harm to an employee in a non-fatal accident. 8
--- Page 9 ---
The maximum allowable good faith reduction for “primary considerations” is 15%.
Good Faith - “Primary Considerations” include
- efforts to comply with VOSH standards before the inspection
- prompt abatement of violations during the inspection
- employer originated worksite inspection programs
- employee comments on safety and health during the inspection
-
the employer’s cooperation and attitude during the inspection
-
employer participation in professional organizations
A violation that is classified as willful, repeat or failure to abate is not
eligible for a good faith penalty reduction.
History
A reduction of 10% is given to employers who have not been cited for any
serious, willful, or repeated violations in the past 3 years statewide.
E. Repeat Policy
The following provisions from VOSH Field Operations Manual, Chapter 11,
Penalties, apply to repeat violations issued to State and Local Government employers:
F. An employer may be cited for a repeated violation if that
employer has been cited previously for a substantially similar condition and the citation has become a final order. All repeated violations must be cited based on the nature of the hazardous condition, not just the code being cited. Repeated violations shall be cited regardless of the previous modification of an earlier violation.
….
- Time Limitations. A citation will be issued as a repeated violation
if the following apply
(1) The citation is issued within three (3) years of the final order of the previous citation, or,
9
[TABLE 9-1] | apply to repeat violations issued to State and Local Government employers |
[/TABLE]
--- Page 10 ---
(2) The citation is issued within three (3) years of the final abatement date of that previous citation, whichever is later.
….
- Employers with Multiple Establishments or Operations
a. No Instance of Statewide Repeated Violations. Employers
with multiple establishments or operations, statewide or across VOSH regional boundaries, or without a fixed site of business, may not be cited for statewide repeated violations where the violations occur in different VOSH Regional Office jurisdictions.
….
For purposes of determining whether a violation is a repeat, the following criteria will apply:
- Fixed Establishment – State and Local Government - A fixed establishment in the public sector is normally a business, activity, or department operated by a public employer at a single physical location (e.g., fire department, hospital, elementary school, etc.).
A public employer can operate two or more establishments at a single physical location (e.g., a university science building with separate establishments for classroom operations, laboratories and a maintenance shop) provided the employer complies with 1904.46(1), (1)(i), (1)(iii), and (1)(iv)
as described below
-
- Can one business location include two or more establishments?
Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that
share a single location to be separate establishments. An employer may divide one location into two or more establishments only when:
-
1904.46(1)(i) Each of the establishments represents a distinctly separate business;
-
1904.46(1)(ii) – not included for purposes of this policy.
-
1904.46(1)(iii) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and 10
[TABLE 10-1] the public sector is normally a business, activity, or department operated by a public employer at a single physical location (e.g., fire department, hospital, elementary school, etc.).
[/TABLE]
[TABLE 10-2] A public employer can operate two or more establishments at a single physical location (e.g., a university science building with separate establishments for classroom operations, laboratories and a maintenance shop) provided the employer complies with 1904.46(1), (1)(i), (1)(iii), and (1)(iv) as described below:
[/TABLE]
[TABLE 10-3] 1904.46. Can one business location include two or more establishments?
Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments. An employer may divide one location into two or more establishments only when:
[/TABLE]
[TABLE 10-4] No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and
[/TABLE]
--- Page 11 ---
- 1904.46(1)(iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction
company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
For purposes of considering whether a violation is a repeat, previous citations must have been issued within the same fixed establishment.
- Non-fixed Establishment – State and Local Government – A non-fixed establishment in the public sector is normally where employees do not work at a single physical location, such as construction, transportation,
communications, electric, gas, and sanitary services, and similar operations.
For public employers engaged in businesses having non-fixed establishments, repeat violations will be alleged based on prior violations of a substantially similar nature occurring anywhere within the applicable VOSH Regional
jurisdiction.
- See VOSH Directive 02-064A, Procedure for Handling Issuance of Citations to VDOT [Virginia Department of Transportation], December 15, 2007, for policies and procedures for issuing repeat violations to VDOT Residency Offices.
http://townhall.virginia.gov/L/GetFile.cfm?File=C:\TownHall\docroot\Guidanc eDocs\181\GDoc_DOLI_3442_v1.pdf
11
[TABLE 11-1] Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
[/TABLE]
[TABLE 11-2] For purposes of considering whether a violation is a repeat, previous citations must have been issued within the same fixed establishment.
[/TABLE]
[TABLE 11-3] establishment in the public sector is normally where employees do not work at a single physical location, such as construction, transportation, communications, electric, gas, and sanitary services, and similar operations.
[/TABLE]
[TABLE 11-4] repeat violations will be alleged based on prior violations of a substantially similar nature occurring anywhere within the applicable VOSH Regional jurisdiction.
[/TABLE]
Process Safety Management Inspection ProgramDoc ID: Process
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DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-411A ISSUED: 01 May 2018
Subject Process Safety Management (PSM) Covered Chemical Facilities National Emphasis Program
Purpose CHANGE II: This Directive transmits to field personnel a description of an OSHA National Emphasis Program (NEP) for inspecting all Virginia facilities with highly hazardous chemicals (HHCs) in amounts at or greater than the threshold
quantities listed in §1910.119, including petroleum refineries. CHANGE I: This Directive transmits to field personnel policies and procedures for a National Emphasis Program (NEP) to reduce or eliminate the workplace hazards associated with the catastrophic release of highly hazardous chemicals. This NEP does not apply to Petroleum refineries (NAICS 32411).
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies VOSH-wide.
Reference CHANGE II: OSHA Instruction CPL 03-00-021 (01 January 2017) CHANGE I: OSHA Instruction CPL 03-00-014 (29 November 2011)
Cancellation VOSH PD 14-411 (01 August 2012)
Effective Date CHANGE II: 15 April 2018 CHANGE I: 01 August 2012
Expiration Date Not Applicable – remains in effect until cancelled or superseded.
Action Directors and Managers shall ensure that field personnel understand and comply with the policies and procedures established in this Directive and that they are uniformly administered.
C. Ray Davenport Commissioner i
[TABLE 1-1]
| DOLI VOSH Virginia Occupational Safety & Health |
DOLI | DOLI | VOSH
[/TABLE]
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Distribution: Commissioner of Labor and Industry Consultation Programs Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH DLS and OIS Staffs When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Assistant Commissioner
Area Director Regional Director VOSH Program Director
Regional Solicitor Attorney General or VOSH Division of Legal Support (DLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO
OSHA Instructions: VOSH Program Directives
CPL 02-02-045 (Revised) –Process Safety Management 02-054A, Process Safety Management of Highly Of Highly Hazardous Chemicals – Compliance Guidelines Hazardous Chemicals, 1910.119 – Inspection And Enforcement Procedures – Appendix A – PSM Audit Procedures and Interpretative Guidance (08/01/99), or its successor
ADM 02-00-160, Field Operations Manual (FOM), 02-001G, VOSH Field Operations Manual (FOM), (08/02/16) (10/01/13), or its successor
CPL 02-00-025 – CPL 2.25I – Scheduling System for 02-051A, Scheduling System for Programmed Programmed Inspections (01/04/95) General Schedule Inspections (02/22/90), or its successor CPL 02-01-037 (CPL 2-1.037), Compliance Policy for 02-013, Compliance Policy for Emergency Action Emergency Action Plans and Fire Prevention Plans Plans and Fire Prevention Plans (04/01/03), or its (07/09/02) successor ii
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CPL 02-00-094 (CPL 2.94), OSHA Response to Significant 02-020, VOSH Response to Significant Events of Events of Potentially Catastrophic Consequences Potentially Catastrophic Consequences (01/15/94), (07/22/91) or its successor CPL 02-00-051, Enforcement Exemptions and 02-003R, VOSH Procedures to comply with OSHA and Limitations Under the Appropriations Act, Most Enforcement Exemptions and Limitations under the Current Version Federal Appropriations Act, OSHA Instruction CPL 2-0.51J, [when inspecting employers with ten or Fewer employees]; Revision of Appendix A (05/01/17), or its successor
iii
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Summary
This Directive provides guidance to the Occupational Safety and Health Administration’s (OSHA’s) national, regional, area, and State Plan offices for implementing and conducting an NEP to reduce or eliminate workplace hazards associated with the catastrophic release of highly hazardous chemicals at facilities covered, including petroleum refineries, by OSHA’s Process Safety Management of Highly Hazardous Chemicals (PSM) standard, §1910.119. VOSH, however, is not participating in the inspections of petroleum refineries. Both programmed and unprogrammed inspections associated with this NEP will begin immediately in all regions.
Significant Changes
This Directive describes an updated initiative by OSHA. Under the previous related instructions, OSHA conducted inspections of facilities covered by OSHA’s PSM standard either through an instruction specific to petroleum refineries or an instruction related to all other PSM-covered chemical facilities related to all other PSM-covered chemical facilities, excluding petroleum refineries.
Should Regional Directors decide to expand a CHEM NEP inspection, inspection resource tools have been added to assist compliance safety and health officers (CSHOs).
Inspection targeting sources have been added to include the Environmental Protection Agency’s Risk Management Plan (EPA RMP) Program Levels 1 and 2 processes.
This Directive also clarifies that targeting of explosive manufacturing includes pyrotechnic manufacturing facilities.
iv
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Table of Contents
I. Purpose ............................................................................................................................................ 1 II. Scope ................................................................................................................................................ 1 III. References ....................................................................................................................................... 1 IV. Cancellations .................................................................................................................................... 3 V. Significant Changes. ......................................................................................................................... 3 VI. Application ....................................................................................................................................... 4 VII. Background. ..................................................................................................................................... 4 VIII. Acronyms and Abbreviations. .......................................................................................................... 5 IX. Program Procedures. ....................................................................................................................... 5 A. Programmed Inspection Site Selection ..................................................................................... 5 1. Targeting Sources…………. ................................................................................................... 5 2. OSHA will use four sources for targeting: ............................................................................ 5 3. Facility Identification and Master List Generation: ............................................................. 6 4. Inspection Scheduling…… ................................................................................................... 7 B. Programmed and Unprogrammed Inspections ......................................................................... 8 1. Programmed Inspections. ................................................................................................... 8 2. Unprogrammed Inspections ................................................................................................ 8 C. Inspection Resources ............................................................................................................... 10
[RESERVED]
- Utilization of Other OSHA Technical and Enforcement Resources ................................... 10
- EPA RMP Facility Information ............................................................................................ 10
- Industry Reference Material Availability ............................................................................ 11 D. Inspection Process ................................................................................................................... 11
- NEP Inspection Process Differs from PSM CPL PQV Process ............................................ 11
- Emphasis on Implementation over Documentation ......................................................... 12
-
Dynamic List Questions…. ................................................................................................. 12
-
Expanding the Inspection.................................................................................................. 13
- Inspect Both Host and Contract Employers ...................................................................... 14
- Review Inspection History and Abatement ...................................................................... 14 E. Inspection Procedures ............................................................................................................ 14
- Supplemented FOM Procedures ....................................................................................... 14
- Opening Conference……….. ................................................................................................ 14
- Documentation to be Requested–General and Process-Related ...................................... 16
- PSM Overview…. …………………. ........................................................................................... 18
- Personal Protective Equipment (PPE) and Camera/Video Use......................................... 19
- Initial Walkaround….………………….. ................................................................................... 20
- Selection of Unit……………….. ............................................................................................. 20
- Inspection of Contractors and Temporary Workers ......................................................... 22
- Compliance Guidelines………. ............................................................................................ 22 10. Review Inspection History and Abatement ...................................................................... 23 11. Citations… ……………………………. ........................................................................................ 23 F. Program Evaluation……………………………………………………. ........................................................ 24 G. Outreach……………………… ......................................................................................................... 24
v
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H. OSHA Information Systems (OIS) Coding ................................................................................. 24 I. Consultation……. ...................................................................................................................... 26 Appendix A ................................................................................................................................................. A-1
vi
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I. Purpose
This Directive describes an OSHA National Emphasis Program (NEP) for inspecting facilities with highly hazardous chemicals (HHCs) in amounts at or greater than the threshold quantities listed in §1910.119.
Programmed1 inspections will be conducted in facilities that are known to or believed to have a
risk of catastrophic releases of HHCs. Unprogrammed2 inspections will take place in PSM-covered facilities as described in this Directive.
II. Scope
This Directive applies OSHA-wide.
III. References A. Federal Register, Volume 57, Number 36, pages 6355 to 6417 (including Preamble),
February 24, 1992, Final Rule, Process Safety Management (PSM) of Highly Hazardous Chemicals, 29 CFR 1910.119; Explosives and Blasting Agents standard, 29
CFR 1910.109.
B. CPL 02-02-045 (Revised) - Process Safety Management of Highly Hazardous Chemicals -- Compliance Guidelines and Enforcement Procedures, September 13, 1994. [See also, VOSH PD 02-054A, Process Safety Management of Highly Hazardous Chemicals, 1910.119 – Inspection Procedures and Interpretative Guidance (08/01/99)]
C. §1910.106, Flammable and Combustible Liquids
D. §1910.146, Permit-Required Confined Spaces
E. §1910.147, The Control of Hazardous Energy (Lockout/Tagout)
F. Part 1910, Subpart I, Personal Protective Equipment
G. §1910.307, Hazardous (Classified) Locations
H. OSHA Instruction CPL 02-00-160, Field Operations Manual (FOM), August 2, 2016. [See also, VOSH Program Directive 02-001G, VOSH Field Operations Manual (FOM)(10/01/03, or its successor] _______ 1 Programmed inspections are defined in CPL 02-00-160 Field Operations Manual as “inspections of worksites which have been scheduled based upon objective or neutral selection criteria.”
2 Unprogrammed inspections are defined in CPL 02-00-160 Field Operations Manual as “inspections scheduled in response to alleged hazardous working conditions that have been identified at a specific worksite.” 1
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I. OSHA Instruction ADM 03-01-005, OSHA Compliance Records, August 3, 1998.
J. CPL 02-00-025 -- CPL 2.25I -- Scheduling System for Programmed Inspections, January 4, 1995.
K. Regional Administrators Memorandum: Establishment-Targeting Lists for Emphasis Programs, OSHA, November 12, 2014.
L. OSHA Instruction ADM 04-00-001, OSHA Safety and Health Management System, May 23, 2011.
M. OSHA Instruction CPL 02-01-037 (CPL 2-1.037), Compliance Policy for Emergency Action Plans and Fire Prevention Plans, July 9, 2002. [See also, VOSH Program Directive 02-013, Compliance Policy for Emergency Action Plans and Fire Prevention Plans (04/01/03)].
N. OSHA Instruction CPL 02-00-094 (CPL 2.94), OSHA Response to Significant Events of Potentially Catastrophic Consequences, July 22, 1991. [See also, VOSH Program Directive 02-020, VOSH Response to Significant Events of Potentially Catastrophic Consequences (01/15/94)].
O. OSHA PSM Safety and Health Topics Index webpage.
P. Accidental Release Prevention Requirements -- Risk Management Programs Under the Clean Air Act, U.S. Environmental Protection Agency’s (EPA) standard, 40 CFR Part 68, Chemical Accident Prevention Provisions.
Q. Guidance for Facilities on Risk Management Programs (RMP), U.S. Environmental Protection Agency (EPA).
R. OSHA Instruction CPL 02-00-051, Enforcement Exemptions and Limitations Under the Appropriations Act, Most Current Version [See also, VOSH Program Directive 02-003R, VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act, OSHA Instruction CPL 2-0.51J [when inspecting employers with ten or fewer employees]; Revision of Appendix A (05/01/17), or its successor.
S. Chemical NEP Dynamic Lists, PSM OSHApedia Extranet website.
T. OSHA Instruction CPL 03-00-010, Petroleum Refinery Process Safety Management National Emphasis Program, August 18, 2009.
U. Appendix A - Static List of Inspection Priority Items (IPI); Petroleum Refinery Process Safety Management National Emphasis Program, CPL 03-00-010.
2
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V. CPL 02-02-045 (Revised) -- Process Safety Management of Highly Hazardous Chemicals --Compliance Guidelines and Enforcement Procedures -- Appendix A – PSM Audit Guidelines. [See also, VOSH Program Directive 02-054A, Process Safety Management of Highly Hazardous Chemicals, 1910.119 – Inspection Procedures and Interpretative Guidance (08/01/99), or its successor.
W. Guidelines for Hazard Evaluation Procedures (3rd Edition), Appendix B -- Supplemental Questions for Hazard Identification; American Institute of Chemical Engineers -- Center for Chemical Process Safety.
IV. Cancellations.
CPL 03-00-014, PSM Covered Chemical Facilities National Emphasis Program, issued November 29, 2011 [VOSH PD 14-411, PSM Covered Chemical Facilities National Emphasis Program (08/01/12)].
V. Significant Changes.
This Directive describes an updated initiative by OSHA. Under the previous related Directive, inspections of facilities covered by the PSM standard were conducted through a Directive related to all other PSM-covered chemical facilities, excluding petroleum refineries.3 This Directive is applicable to all PSM-covered facilities, excluding petroleum refineries.
NEP inspections conducted at petroleum refineries will be conducted in the same manner as NEP inspections conducted at all other facilities covered by this Directive.
Should regional directors decide to expand a PSM-Covered Chemical Facilities National Emphasis Program (CHEM NEP) inspection, inspection resource tools have been added to assist CSHOs.
Inspection targeting sources have been added to include EPA RMP Program 1 and Program 2 processes. This Directive also clarifies that targeting explosive manufacturing includes pyrotechnic manufacturing facilities.
3 CPL 03-00-014, PSM Covered Chemical Facilities National Emphasis Program, OSHA, November 29, 2011
3
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VI. Application.
VOSH compliance officers shall follow the procedures contained in this Directive when inspecting the facilities selected under this NEP.
VII. Background.
OSHA promulgated the PSM standard in 1992 in response to a number of catastrophic incidents that occurred worldwide.4 These incidents spurred broad recognition that handling Highly Hazardous Chemicals (HHCs) could lead to incidents that may occur infrequently but, due to their catastrophic nature, often result in multiple injuries and fatalities.
On September 28, 1992, OSHA issued instruction CPL 02-02-045 (Revised), Process Safety Management of Highly Hazardous Chemicals – Compliance Guidelines and Enforcement Procedures [See VOSH PD 02-054A (08/01/99)]. CPL 02-02-045 established policies, procedures, clarifications, and compliance guidance for enforcement of the PSM standard. The instruction acknowledged that Program Quality Verification (PQV) inspections were resource-intensive and, therefore, OSHA would perform only a limited number each year. Consequently, very few PQV inspections have been conducted since OSHA issued CPL 02-02-045 [See VOSH PD 02-054A].
OSHA implemented a PSM NEP for petroleum refineries in June 2007 and an update in August 2009 (Refinery NEP). This NEP resulted in the inspection of all eligible [i.e., non-Voluntary Protection Program (VPP)] petroleum refineries in OSHA’s Federal jurisdiction. Utilizing the refinery NEP inspection program, OSHA identified a significant number of hazards that required abatement by employers. OSHA found that the inspection methodology specified by the
Refinery NEP required significant resources for each inspection conducted. The Refinery NEP ended in 2011 in areas under Federal jurisdiction.
In July 2009, OSHA implemented a pilot NEP for PSM-covered chemical facilities. The pilot outlined a modified approach for inspecting PSM-covered facilities that allowed for a greater number of inspections by better allocation of OSHA resources. The pilot proved to be effective in increasing the number of PSM facilities inspected while at the same time limiting the resources required for each inspection.
After a review of the pilot NEP, OSHA implemented the CHEM NEP in November 2011, and VOSH implemented a comparable program directive in 2012. This NEP applied to all non-VPP PSM-covered processes, except for petroleum refineries. Like the pilot, it employed an inspection methodology that better allocated resources, thereby allowing for a greater number of inspections.
______ 4 Process Safety Management of Highly Hazardous Chemicals, 29 CFR 1910.119, Preamble: Section 1– I.
Background
4
[TABLE 10-1] OSHA implemented a PSM NEP for petroleum refineries in June 2007 and an update in August 2009 (Refinery NEP). This NEP resulted in the inspection of all eligible [i.e., non-Voluntary Protection Program (VPP)] petroleum refineries in OSHA’s Federal jurisdiction. Utilizing the refinery NEP inspection program, OSHA identified a significant number of hazards that required abatement by employers. OSHA found that the inspection methodology specified by the Refinery NEP required significant resources for each inspection conducted. The Refinery NEP ended in 2011 in areas under Federal jurisdiction.
[/TABLE]
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OSHA has continued to find a substantial number of hazards at facilities that are inspected under the CHEM NEP. Since 2010, the OSHA has issued 69 significant enforcement cases to chemical facility employers inspected under the CHEM NEP. VOSH has had 16 enforcement cases under CHEM NEP since August of 2014. During the same period, OSHA issued 24 significant enforcement cases to petroleum refinery employers. Petroleum refineries also have experienced numerous fatal and/or catastrophic process related incidents since 2010.
VIII. Acronyms and Abbreviations.
AD – Area Director (OSHA) AO – Area Office (OSHA) CHEM NEP or NEP -- PSM Covered Chemical Facilities National Emphasis Program CSHO – Compliance Safety and Health Officer DEP – Directorate of Enforcement Programs (OSHA National Office) DSG – Directorate of Standards and Guidance (OSHA National Office) DTE – Directorate of Training and Education (OSHA National Office) DTSEM -- Directorate of Technical Support and Emergency Management (OSHA National Office) EPA -- U.S. Environmental Protection Agency FOM – Field Operations Manual HAZWOPER – Hazardous Waste Operations and Emergency Response HHC – Highly Hazardous Chemical HRT – Health Response Team IMIS – Integrated Management Information System LEL – Lower Explosive Limit OCA – Off-site Consequence Analysis
OCPSEI – Office of Chemical Process Safety and Enforcement Initiatives (OSHA National Office -doc) OIS – OSHA’S Information System (OIS) OSA – Office of Statistical Analysis (OSHA National Office - Directorate of Technical Support and Emergency Management) OTI - OSHA Training Institute (OSHA National Office - Directorate of Training and Education) NAICS – North American Industrial Classification System NEP – National Emphasis Program NO – National Office (OSHA) RA – Regional Administrator (OSHA) RD – Regional Director RMP – Risk Management Plans (U.S. EPA) RO – Regional Office (OSHA) SLTC- Salt Lake City Technical Center SRT – Specialized Response Team
IX. Program Procedures
A. Programmed Inspection Site Selection.
- Targeting Sources. 5
[TABLE 11-1] | During the same period, OSHA issued 24 significant enforcement cases to petroleum refinery employers. Petroleum refineries also have | experienced numerous fatal and/or catastrophic process related incidents since 2010. |
[/TABLE]
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2. OSHA will use four sources for targeting
a. EPA Chemical Accident Prevention Provisions, Program 1, Program 2 and Program 3 RMP operator/employer submittals;
b. Explosives and pyrotechnics manufacturing NAICS codes;
c. OSHA’s Integrated Management Information System (IMIS) and OSHA’s Information System (OIS) databases for establishments with prior OSHA PSM citations; and
d. OSHA Area Office knowledge of local facilities.
3. Facility Identification and Master List Generation
a. Facility identification and master targeting list generation will follow the regional administrators memorandum - Establishment-Targeting Lists for Emphasis Programs, (See PSM OSHApedia Extranet Website), where not otherwise addressed below.
b. OSHA’s National Office (NO) will use the following procedure to create the National PSM Covered Chemical/Refining Targeting List:
- DEP will obtain a list of facilities that submitted EPA Program 1,
Program 2, and 3 RMPs;
-
OSA will provide DEP with a list of facilities identified in the IMIS or OIS databases as having been previously cited under PSM with an issuance date between January 1, 2000 through September 30, 2015;
-
OSA will provide DEP with a list of facilities with NAICS and/or SIC codes identified as explosives and pyrotechnics manufacturing.
c. DEP will combine these lists and sort them into five lists
-
Category 1 – Facilities with NAICS Codes likely to have ammonia used for refrigeration as the only HHC;
-
Category 2 – NAICS 32411 or 324110, Petroleum Refineries, VOSH is not inspecting Petroleum Refineries;
-
Category 3 – NAICS 325, Chemical Manufacturing;
6
--- Page 13 ---
- Category 4 - NAICS Codes for facilities that are likely PSM covered but not Category 1, Category 2, or Category 3.
d. OSA will provide each region with an initial master list for their jurisdiction.
Based on their familiarity with local facilities, regional offices (or at the discretion of the Regional Office, this list can be compiled by the Regional Director shall:
- Add any facility that is not on the national list, but are known by the Regional Office to operate in their jurisdiction, and are known as likely to be PSM-covered.
Regional offices shall note that because EPA’s RMP and OSHA’s PSM cover different chemicals, the national list may be missing PSM covered facilities – particularly those that use flammable liquids.
Therefore, regional or area offices shall add any listed facility that based on local knowledge is likely to be PSM-covered.
-
Mark for deletion any facility that is known to be out of business, documenting the basis for such determinations;
-
Mark for deletion any facility that is an approved participant in OSHA’s VPP or OSHA Consultation’s Safety and Health Achievement Recognition Program (SHARP); and
-
Mark for deletion any facility that has already received an inspection under the CHEM NEP in the last three years since the opening conference date of the last inspection. Include the inspection number and opening conference date of the prior inspection.
e. The regional office must retain the lists for three (3) years after the completion of all inspections conducted under this Directive. (See OSHA Instruction OSHA Compliance Records, ADM 03-01-005.) Note: the Regional Office may choose to have the lists maintained and retained at the Region’s discretion.
f. The National Office (NO) will provide the region with updated master lists upon request, but not more frequently than on an annual basis.
- Inspection Scheduling.
a. Regions will initiate programmed inspections upon the effective date of this Directive.
7
--- Page 14 ---
b. The National Office (NO) will compile and randomize the final master lists.
To ensure that inspections are appropriately allocated across all hazardous processes, programmed inspections will be apportioned to five (5) categories as listed below:
-
Category 1 - approximately 25 percent of the total programmed inspections;
-
Category 2 - the Agency’s annual goal is set in section IX.A.3.b above. The goal will be allocated across regions.
-
Category 3 Master List programmed inspections - approximately 45 percent of the total programmed inspections; and
-
Category 4 Master List programmed inspections - approximately 30 percent of the total programmed inspections.
The number of required inspections under this Directive is set for the region by the VOSH Safety Director, who will allocate assignments to the regional offices to meet their required annual number of inspections per the target category percentages. Once the regional office is assigned the number of inspections to be completed, it must select and inspect establishments in the random order provided on their final master lists with the same options available as used by the general inspection schedule. One of the
options, for example, is the Regional Director may select the first three establishments on the master list, sorted by ascending random number as a first cycle of three establishments. The Regional Director can then inspect those three establishments in any order, but must finish the cycle prior to beginning a second cycle. Once the first cycle is complete, the area office can inspect the next three establishments on the randomized master list as its second cycle.
If a region has not completed inspecting all the facilities on its master lists from the prior CHEM NEP instruction, the Regional Director will discontinue any further inspections scheduled from the prior instruction and use the final master lists that have been developed for the update to this Directive.
B. Programmed and Unprogrammed Inspections.
- Programmed Inspections.
Programmed inspections will be initiated using this Directive. Some establishments with PSM-covered processes may also be selected for inspection 8
--- Page 15 ---
based on instructions provided in other national emphasis programs/local emphasis programs.
- Unprogrammed Inspections.
The following guidelines shall be used for all unprogrammed inspection activities related to PSM-covered processes:
a. Complaint or referral. If a complaint or referral is received relating to a PSM-covered process and it:
-
Involves an application of the PSM standard -- the Regional Director shall evaluate the complaint or referral item(s) according to the VOSH FOM and conduct an inspection using this Directive. If the complaint or referral item(s) are initiated due to a complaint or referral related to a contractor employer, inspections of both the contractor and host employer shall be conducted. Normally, the inspection shall be limited to the complaint and referral item(s)/subject(s) and the CHEM NEP dynamic list contractor questions.
-
Does not involve an application of the PSM standard (for example, there is a complaint about fall protection hazards in a PSM-covered process) - the inspection or inquiry will normally be limited to the complaint and referral item(s)/subject(s). However, if the facility has
not already been inspected using this Directive, a concurrent inspection using this NEP may be conducted at the Regional Director’s discretion.
b. Accidents and Catastrophes. In addition to this Directive’s guidelines, responses to accidents and catastrophes in facilities with PSM-covered processes shall follow the guidelines contained in the VOSH FOM, and where appropriate, VOSH PD 02-020, VOSH Response to Significant Events of Potentially Catastrophic Consequences (01/15/94), or its successor.
When an accident or catastrophe occurs in a facility that contains a PSM-covered process, and it:
-
Involves an application of the PSM standard – the inspection will include the accident investigation item(s)/subject(s) and a CHEM NEP inspection using this Directive.
-
Does not involve an application of the PSM standard - the inspection will normally be limited to the accident investigation item(s)/subject(s). However, if the facility has not already been inspected using this Directive, a concurrent Chemical NEP inspection 9
--- Page 16 ---
using this Directive may be conducted at the Regional Director’s discretion.
VPP sites are subject to CHEM NEP inspections that are initiated by an unprogrammed activity.
C. Inspection Resources.
Appropriate levels of staff experience, training and preparation are essential for compliance activities relating to the PSM standard. Inspections using this NEP may be conducted by either a single VOSH employee or a team.
[RESERVED]
- Utilization of Other OSHA Technical and Enforcement Resources.
CSHOs and other inspection team members shall fully utilize Regional Office (RO) and National Office (NO) (DEP, DSG, and DTSEM) technical and enforcement support resources when making decisions about compliance or noncompliance.
Regional Offices may include technical experts from the Health Response Team (HRT) in OSHA’s Salt Lake City Technical Center (SLTC), or VOSH’s contract
laboratory, as circumstances warrant. The HRT has expertise in areas of industrial hygiene, chemical, biological, radiation, toxicology, equipment failure, and engineering inspection support. Sometimes major chemical incidents include collapsed or unstable structures. The HRT coordinates the Specialized Response Team (SRT) that includes experts in collapsed structures that may assist OSHA on-site teams during the early phases of investigations.
When requesting outside resources to assist in inspections, early involvement of these resources is most effective.
- EPA Risk Management Plan (RMP) Facility Information.
EPA’s Risk Management Plan (RMP) rule requires operators (employers) with an RMP-covered process to develop and submit an RMP to EPA. EPA in turn posts this information to its access-limited RMP Info database through its EPA Central Data Exchange. CSHOs are encouraged to access this information prior to opening a programmed inspection, and early in the inspection process for unprogrammed inspections. OSHA and State Plan personnel may gain access to EPA’s RMP Info database. To gain access to RMP Info, follow the instructions contained in the PSM OSHApedia Extranet Website, Instructions for Obtaining Access to EPA’s RMP Info Database. 10
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As most RMP facilities are also covered by OSHA’s PSM standard, the specific site’s RMP Info is a resource that can be helpful for PSM inspections. For instance, RMP Info data can be used by CSHOs to determine:
- Whether employers consider themselves to have either an RMP or PSM-covered process (Note: there is a specific element of RMP Info that requires operators to state whether their process is covered by PSM);
-
Which RMP covered chemicals and quantities are on-site;
-
The RMP Program Level the operator assigns and reports, which can give insight into whether the process is PSM-covered or if the operator claims a PSM exemption;
-
If there have been any incidents that were required to be reported to the RMP accident database;
-
Existing prevention and mitigation measures as reported by the operator; and
-
Off-site consequence analysis (OCA) data required of operators (employers) to analyze their RMP-covered process worst-case and alternate case release scenarios of covered chemicals. (Note, OCA data can provide information about potential worker exposures during releases).
To assist in the coordination of enforcement inspections, regional PSM coordinators may contact their local EPA RMP coordinators to share inspection information/results.
- Industry Reference Material Availability.
In addition to the list of documents found in Appendix D of CPL 02-02-045 (Revised) [See VOSH PD 02-054A, VOSH Response to Significant Events of Potentially Catastrophic Consequence (08/01/99)], or its successor, OSHA’s PSM Safety and Health Topics Web site lists documents that will be useful for PSM inspections. Furthermore, a list of References for Chemical and Process Safety is provided on the PSM OSHApedia Extranet Website. Regional Offices shall consult the Program Director or his/her designated PSM Coordinators, if any, to identify which industry documents are necessary to support their enforcement activities.
Each RO library shall have access to industry reference documents for CSHOs to use during the inspection. CSHOs may also access documents available online through OSHA’s Technical Data Center Web site. From this site, CSHOs may access applicable chemical/process safety electronic books, consensus
11
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standards, recommended practices, other industry documents, and other relevant materials.
D. Inspection Process.
- NEP Inspection Process Differs from PSM CPL PQV Process.
This NEP differs from the program-quality-verification (PQV) approach in PSM CPL 02-02-045 (Revised) [See VOSH PD 02-054A, VOSH Response to Significant Events of Potentially Catastrophic Consequence (08/01/99), or its successor].
Inspections conducted using the PDV approach were broad and open-ended, while inspections using this instruction rely on specific investigative questions.
The investigative questions are designed to gather facts related to requirements of the PSM standard, and include guidance for reviewing documents, interviewing workers, and verifying full implementation.
- Emphasis on Implementation over Documentation.
Based on inspection history at refineries and large chemical plants, OSHA has found that employers may have an extensive written process safety management program, but insufficient program implementation. Therefore, CSHOs shall verify the implementation of PSM elements to ensure that the employer’s actual program is consistent with the written program.
- Dynamic List Questions.
CSHOs shall select one or more units and use a dynamic list(s) of questions (referred to in this document as the Dynamic List) to evaluate PSM compliance.
a. The Directorate of Enforcement Programs (DEP) develops Dynamic Lists for CSHOs to use during CHEM NEP inspections. These lists (Chemical NEP Dynamic List of Questions) are periodically updated by DEP and are published to the PSM OSHApedia Extranet Website.
b. For inspection integrity purposes, OSHA will not publicly disclose the Dynamic Lists. The dynamic lists will only be posted on OSHA’s PSM OSHApedia Extranet Website. CSHOs shall download and use the dynamic list(s) denoted as “Effective” at the time of the opening conference. For inspection preparation purposes, DEP will post the dynamic list(s) approximately seven days before they become effective.
Example: If: (1) the most recent dynamic list posted on the PSM OSHApedia Extranet Website has an “Effective Date” of April 17, 2016; (2) the previous Dynamic List has an “Effective Date” of August 1, 2015; and (3) the opening date of the current inspection is April 15, 2016, then the CSHOs will use the August 1, 2015 Dynamic List for the inspection. Reason - the opening date of 12
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the current inspection is before the “Effective Date” of the August 17, 2016 Dynamic List.
Note: Contact DEP if you have difficulty downloading the Dynamic Lists.
c. CSHOs shall use the PSM OSHApedia Extranet Web site, CSHO Instructions for the Dynamic Lists, to determine the dynamic list questions that they shall use to evaluate compliance. This site gives CSHOs information on how to determine the appropriate number and type of dynamic list questions to evaluate based on the nature of the process being inspected.
- Expanding the Inspection.
If, during the compliance evaluation, CSHOs determine that: (1) PSM deficiencies may exist outside the selected unit(s) or dynamic list questions, or (2) the number of deficiencies identified through the dynamic list evaluation process is substantial, the inspection may be expanded after consultation with the Regional Director. CSHOs shall document the basis for this determination.
CSHO’s may also expand the scope of the inspection in accordance with the procedures in the VOSH FOM, Chapter 5.I.B.
CSHOs may address obvious and other plain view hazardous conditions without requesting an expansion of the inspection. The intent of this provision is to limit the inspection by not requiring a team leader or CSHO to expand an inspection
for every obvious and plain view hazardous condition that they identify. CSHOs shall document how they determined the existence of these hazardous conditions.
CSHOs may expand CHEM NEP inspections after consultation and at the discretion of the Regional Director. If a CHEM NEP inspection is expanded, CSHOs may use, but are not limited to, the following applicable resources to assist them in their inspections:
-
Prior Chemical NEP Dynamic Lists of Questions (see PSM OSHApedia Extranet Website - 2.1.3.1 Prior CHEM NEP Dynamic Lists);
-
Appendix A – PSM Audit Guidelines contained in CPL 02-02-045 (Revised) --Process Safety Management of Highly Hazardous Chemicals -- Compliance Guidelines and Enforcement Procedures;
-
Appendix B -- Supplemental Questions for Hazard Identification contained in Guidelines for Hazard Evaluation Procedures (Third Edition), AIChE – Center for Chemical Process Safety (available through OSHA Extranet TDC ebrary Website); or
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- Any other inspection resource that CSHOs deem appropriate.
CSHOs shall contact the DEP PSM Team if they have questions related to the applicability of an additional inspection resource that they may use to inspect a selected unit.
- Inspect Both Host and Contract Employers.
CSHOs shall inspect both the host employer and contract employers, as specified in IX.E.8, below.
- Review Inspection History and Abatement.
CSHOs shall review all the available inspection history and any abatement verification submitted by the employer for citations resulting from those inspections.
E. Inspection Procedures.
- Supplemented VOSH FOM Procedures.
The procedures given in the VOSH FOM, Chapter 5, shall be followed except as modified in the following sections.
- Opening Conference.
Where possible, the facility safety and health director, process safety manager, or other person capable of explaining the company’s process safety management program shall be asked to attend the opening conference.
The opening conference shall include the following
a. Verify Whether the Facility is Covered by the Appropriations Rider.
CSHOs need to determine if the facility to be inspected is covered by the most recent enforcement policy related to the federal Appropriations Act by referring to the federal Appropriations Act by referring to VOSH Program Directive 02-003R (07/01/17), or its successor, VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the federal Appropriations Act if:
- they employ 10 or fewer employees currently and at all times during the last 12 months; and
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- the lost workday case rate for its primary NAICS work activity is below the all-industry national average. See VOSH PD 02-003R (07/01/17), or its successor (for listings of primary NAICS work activities that are below the all-industry national average.
If the facility is covered by the Appropriations Rider, the CSHO will curtail the inspection and contact their supervisor to communicate their findings.
b. Verify PSM Applicability. CSHOs need to confirm that the facility has a PSM-covered process.
- CSHOs shall request a list of the chemicals on site and their respective maximum intended inventories. CSHOs shall review the list of chemicals and quantities, and determine if there are HHCs listed in §1910.119 Appendix A, or flammable liquids or gases at or above the specified threshold quantity; or whether the facility manufactures any quantity of explosives or pyrotechnics.
CSHOs shall ask questions, conduct interviews, and/or conduct a preliminary walkaround, as necessary, to confirm the information on the list of chemicals and maximum intended inventories. If CSHOs determine that there are no Appendix A HHCs, flammable liquids with flashpoints less than 100 degrees Fahrenheit, or flammable gases present in sufficient quantities and the facility is not manufacturing explosives or pyrotechnics, as defined in
- 109, then, after updating the Regional Director, they shall document their findings and end the inspection.
-
CSHOs shall confirm that the facility is not a retail facility, oil or gas well drilling or servicing operation, or normally unoccupied remote facility (§1910.119(a)(2)). If the facility is one of these types of establishments, CSHOs shall document their findings and end the inspection.
-
CSHOs shall determine if other exemptions apply. According to §1910.119(a)(ii), a process could be exempt if the employer can demonstrate that covered chemical(s) are:
− Hydrocarbon fuels used solely for workplace consumption as a fuel (e.g., propane used for comfort heating, gasoline for vehicle refueling), if such fuels are not a part of a process containing another HHC covered by the standard, or
− Flammable liquids with flashpoints less than 100 degrees Fahrenheit stored in atmospheric tanks or transferred which are
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kept below their normal boiling point without the benefit of chilling or refrigeration.
If the employer believes that the process is exempt, CSHOs shall ask the employer to provide documentation or other information that demonstrates why the process is exempt. After reviewing the documentation or other information, if the CSHO believes a question still exists related to PSM coverage, (e.g., the CSHO believes an employer has improperly applied the hydrocarbon fuels exemption when flammable gases that are part of a covered process are used for more than “solely for workplace consumption as fuel”), then the CSHO, through the Regional Director, shall contact their region to resolve the coverage issue. If the region has questions related to PSM-coverage of the site, they shall contact the DEP PSM Team in OSHA’s DEP – OCPSEI.
- CSHOs may ask questions, conduct interviews, or and/or conduct a preliminary walkaround, as necessary, to determine whether any of the PSM exemptions apply. If, at this point, a CSHO determines that the facility is either not covered or covered but exempted, then, after updating the Regional Director, CSHOs shall document their finding and end the inspection. The Regional Director shall inform the CSHOs that the facility is not PSM-covered so that the Regional Director can update the Regional Master List.
c. During the opening conference, CSHOs shall familiarize themselves with the establishment’s emergency response procedures and emergency alarms.
d. CSHOs shall also request that the management representative(s) provide them with an overview of the processes/units at the facility, including block flow and/or process flow diagrams indicating chemicals and processes involved.
e. To understand the basics of the employer’s processes and the possible catastrophic scenarios that could occur, the team shall ask the management representative to explain catastrophic release scenarios that might occur and what controls are in place to prevent them from happening.
f. During the opening conference, CSHOs shall determine the nature of the PSM-covered process(es) as they might relate to the dynamic lists questions.
CSHOs shall use the CSHO Instructions for the Dynamic Lists contained in the PSM OSHApedia Extranet Website to determine which sets of questions to utilize for the type of process being inspected, and also how many questions shall be addressed during the inspection. 16
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g. Also during the opening conference, CSHOs shall ask whether any workers at the facility are temporary workers who work on or near a PSM-covered process.
- Documentation to be Requested -- General and Process-Related.
CSHOs shall request access to the documents listed below
Compliance Guidance: The list below is not intended to limit the type and number of documents to be requested. The OSHA inspection team may request more documents as necessary.
Some requests require the employer to provide a list of information. The intent of first requesting a list versus complete documentation is to limit the amount of documents that the employer may need to produce.
The following tables represent documents typically compiled by employers with PSM-covered processes at their facilities. The PSM standard requires the employer to maintain some, but not all, of these documents. Therefore, the employer may not have all of these documents. Documents specifically required by an OSHA standard or regulation are identified (*). If employers do not have these identified/required documents, then employers may be cited independent of the dynamic list questions. Table 1 identifies documents that shall be requested prior to identifying the Selected Unit(s). Table 2 identifies documents that shall be requested after the selected unit(s) are identified. In some cases, documentation may have been produced by a consultant or
contractor.
Table 1 - Documents That Shall Be Requested Prior to Identifying the Selected Unit(s) OSHA 300 logs for the previous three years for the employer and the process-related contractors*.
All contract employee injury and illness logs as required by 1910.119(h)(2)(vi)*.
A list of all PSM-covered process/units in the complex.
A list of all units and the maximum intended inventories* of all chemicals (in pounds) in each of the listed units.
Compliance Guidance: 1910.119(d)(2)(i)(C) requires employers to have process safety information (PSI) for the maximum intended inventories of chemicals that are part of their PSM-covered processes.
A summary description of the facility’s PSM program.
Unit process flow diagrams*.
Process narrative descriptions.
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[TABLE 23-1] Table 1 - Documents That Shall Be Requested Prior to Identifying the Selected Unit(s) OSHA 300 logs for the previous three years for the employer and the process-related contractors*.
All contract employee injury and illness logs as required by 1910.119(h)(2)(vi)*.
A list of all PSM-covered process/units in the complex.
A list of all units and the maximum intended inventories* of all chemicals (in pounds) in each of the listed units.
Compliance Guidance: 1910.119(d)(2)(i)(C) requires employers to have process safety information (PSI) for the maximum intended inventories of chemicals that are part of their PSM-covered processes.
A summary description of the facility’s PSM program.
Unit process flow diagrams*.
Process narrative descriptions.
[/TABLE]
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Host employer’s program for evaluating contract employer’s safety information.
Host employer’s program/safe work practices for controlling the entrance/exit/work of contractors and their workers in covered process areas.
Emergency Action Plan (If the employer has 10 or fewer employees they may communicate the plan orally (29 CFR 1910.38(b)) -- i.e., they may not have a written emergency action plan; and Emergency Response Plan if the facility is also required to comply with 29 CFR 1910.120(q).
Host employer’s program for periodically evaluating contractor performance.
Table 2 – Documents That Shall Be Requested After the Selected Unit(s) Are Identified Piping and instrumentation diagrams (P&IDs) including legends*.
Unit electrical classification documents*.
Descriptions of safety systems (e.g., interlocks, detection or suppression systems)*.
Design codes and standards employed for process## and equipment## in the Selected Unit(s).
A list of all workers (i.e., hourly and supervisory) presently involved in operating the Selected Units(s), including names, job titles, work shifts, start date in the unit, and the name of the person(s) to whom they report (their supervisor).
The initial process hazard analysis(PHA) and the most recent update/redo or revalidation for the Selected Unit (s); this includes PHA reports, PHA worksheets, actions to address findings and recommendations promptly, written schedules for actions to be completed, and documentation of findings and recommendations*.
Compliance Guidance: Any PHA performed after May 25, 1987 that meets the requirements of §1910.119(e) may be claimed by the employer as the initial PHA for compliance purposes, see §1910.119(e)(1)(v).
Safe upper and lower operating limits for the Selected Unit(s)*.
A list by title and unit of each PSM incident report; all PSM incident reports for the Selected Unit*.
Contract employer’s safety information and programs (this will be requested from the host employer after it is determined which contractor(s) will be inspected).
Contractor employer’s documentation of contract workers’ training, including the means used to verify employees’ understanding of the training* (this will be requested from the respective contractor employer(s) after it is determined which contractor(s) will be inspected).
Other documents as specified in the Dynamic Lists.
18
[TABLE 24-1] Host employer’s program for evaluating contract employer’s safety information.
Host employer’s program/safe work practices for controlling the entrance/exit/work of contractors and their workers in covered process areas.
Emergency Action Plan (If the employer has 10 or fewer employees they may communicate the plan orally (29 CFR 1910.38(b)) -- i.e., they may not have a written emergency action plan; and Emergency Response Plan if the facility is also required to comply with 29 CFR 1910.120(q).
Host employer’s program for periodically evaluating contractor performance.
[/TABLE]
[TABLE 24-2] Table 2 – Documents That Shall Be Requested After the Selected Unit(s) Are Identified Piping and instrumentation diagrams (P&IDs) including legends*.
Unit electrical classification documents*.
Descriptions of safety systems (e.g., interlocks, detection or suppression systems)*.
Design codes and standards employed for process## and equipment## in the Selected Unit(s).
A list of all workers (i.e., hourly and supervisory) presently involved in operating the Selected Units(s), including names, job titles, work shifts, start date in the unit, and the name of the person(s) to whom they report (their supervisor).
The initial process hazard analysis(PHA) and the most recent update/redo or revalidation for the Selected Unit (s); this includes PHA reports, PHA worksheets, actions to address findings and recommendations promptly, written schedules for actions to be completed, and documentation of findings and recommendations*.
Compliance Guidance: Any PHA performed after May 25, 1987 that meets the requirements of §1910.119(e) may be claimed by the employer as the initial PHA for compliance purposes, see §1910.119(e)(1)(v).
Safe upper and lower operating limits for the Selected Unit(s)*.
A list by title and unit of each PSM incident report; all PSM incident reports for the Selected Unit*.
Contract employer’s safety information and programs (this will be requested from the host employer after it is determined which contractor(s) will be inspected).
Contractor employer’s documentation of contract workers’ training, including the means used to verify employees’ understanding of the training* (this will be requested from the respective contractor employer(s) after it is determined which contractor(s) will be inspected).
Other documents as specified in the Dynamic Lists.
[/TABLE]
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- PSM Overview.
Prior to beginning the initial walkaround inspections, the team shall request an explanation of the company’s PSM programs including, but not limited to:
a. A briefing on the PSM program components and how the facility implements them;
b. Identification by name and position of personnel responsible for implementing the standard’s various elements;
c. A description of company records verifying compliance with standards; and
d. A review of the written summary description of the PSM program.
- Personal Protective Equipment (PPE) and Camera/Video Use.
In addition to normal inspection protective equipment (refer to OSHA Field Safety and Health Manual, ADM 04-00-001), CSHOs conducting these
inspections shall be provided with flame-retardant clothing for protection from flash fires.
a. CSHOs shall wear flame-retardant clothing in all areas of the plant where there is potential for flash fires and as may be required by company policy.
Clothing made of hazardous synthetic fabrics may melt, causing severe burns, and shall not be worn underneath flame-retardant coveralls. All garments worn under flame-retardant coveralls shall be made of 100% cotton or other non-synthetic fibers.
b. Prior to any preliminary or initial walkaround inspections, CSHOs shall review the employer’s procedures for PPE selection and allowable electronic equipment in the Selected Unit (s) and/or areas of the facility that CSHOs will be inspecting. CSHOs shall ensure that these procedures and the associated PPE selection have been prepared in accord with the PSM standard as well as 1910, Subpart I, Personal Protective Equipment. Where flash fires are possible, the facility-required PPE and flame-retardant clothing are the baseline PPE requirements for CSHOs conducting walkaround inspections.
- If the facility requires a respirator or, in a CSHO’s judgment, a respirator shall be worn, then each CSHO must have received proper training and qualification prior to using a respirator.
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- For hazardous electrically classified areas, CSHOs shall ensure that all cameras and other electronic devices are intrinsically safe.
Note: “Intrinsically safe” means that the equipment has an electronic circuit and its wiring will not cause any sparking or arcing and the equipment cannot store sufficient energy to ignite a flammable gas or vapor, and cannot produce a surface temperature high enough to cause ignition. For example, CSHOs may use any camera equipped with a telephoto lens from outside classified areas and/or still film cameras without batteries or a flash.
If the employer allows the use of non-intrinsically safe cameras or other equipment in hazardous (classified) locations, CSHOs may use this type of equipment when:
the employer issues a hot work permit for the use of the camera; and
continuous combustible gas metering, which has been calibrated prior to use, is provided in the areas where the camera or equipment will be used.
- Initial Walkaround.
After the opening conference, the inspection may begin with a brief initial walkaround inspection of those portions of the facility within the scope of the PSM standard. During the initial walkaround CSHOs shall: a. Look for differences between what was presented in the PSM overview discussion and actual conditions;
b. Gather information to aid in the selection of the process unit(s) a.k.a. selected unit(s) to be inspected;
c. Obtain a basic overview of the facility’s operations;
d. Observe potential hazards including, but not limited to, pipe work at risk of impact, corroded or leaking equipment, unit or control room siting and trailer location, relief devices and vents that discharge to atmosphere, and ongoing construction and maintenance activities;
e. Solicit input from workers and their representatives and contract employees concerning potential PSM program deficiencies.
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Compliance Guidance: Additional walkaround activity will be necessary after the Selected Unit(s) is identified. (See section E.7., below.)
- Selection of Unit.
The team leader shall select a PSM-covered process or processes to evaluate for compliance with the standard. For large, continuous processes, the team leader may select a portion of the covered process -- for example, a unit operation within the covered process. The selected process or portion thereof shall be referred to as the selected unit.
Team leaders may select more than one unit if they feel it is necessary to get a representative sample of the facility’s covered processes based on its size and complexity. The selection shall be based on the factors listed below, and shall be documented in the case file:
b. If the establishment has more than one PSM-covered process or process unit, then the selected unit or units should be different than a selected unit from a prior CHEM NEP inspection. If all the PSM-covered processes or process units have been Selected Units during past CHEM NEP inspections, then the team leader may initiate an inspection on a previously inspected selected unit.
Notwithstanding the above, if in the opinion of the team leader, in lieu of inspecting low risk processes that have yet to be inspected under the CHEM
NEP, the team leader may select other higher risk covered processes that have previously been inspected. See criteria listed immediately below to assist in determining higher risk covered processes:
c. Nature and quantity of chemicals involved, e.g., risk of releasing flammables, high toxicity substances present, high operating pressures and temperatures
d. Incident investigation reports, near-miss investigation reports, emergency shutdown records, and other history
e. Lead operator’s input
f. Age of the process unit
g. Factors observed during the walkaround
h. Worker representative input
i. Number of workers present
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j. Current hot work, equipment replacement, inspection, test and repair records, or other maintenance activities
k. Compliance audit records, including open and pending items
l. List of contractors
Compliance Guidance: It is not intended that the unit selection be a resource-intensive activity. The criteria listed above are intended to be used as a guide.
Team leaders shall attempt to identify the most hazardous process using these criteria; however, they can use discretion in choosing the selected unit.
- Inspection of Contractors and Temporary Workers.
a. If the facility is using contractors in PSM covered operations
All contractors, including subcontractors, working on or adjacent to the selected unit shall be inspected as per the Programmed Inspection section in this Directive (IX.B.1, above). If an inspection is initiated as a result of an unprogrammed activity, contractors shall be inspected as per the Unprogrammed Inspection section in this Directive IX.B.2, above).
CSHOs shall the applicable questions in the current Chemical NEP Dynamic List of Questions; General List -- Host and Contract Employer Questions (Required) (See PSM OSHApedia Extranet Website) when evaluating host
and contractor employer compliance. CSHOs shall also use the applicable questions in this list to evaluate the employer’s compliance with PSM requirements for host and contract employers and their employees.
If there are no contractors working on or adjacent to the selected unit when the team leader is prepared to inspect the contract employers, then the team leader needs to choose an additional PSM-covered process where contractors are known to be working, and inspect those contractors.
b. If the facility is using temporary workers. i.e., workers supplied to a host employer and paid by a staffing agency:
CSHOs shall determine if there are any workers working on or near a PSM-covered selected unit and exposed to a violative condition are temporary.
When VOSH finds a temporary worker exposed to a violative condition, and is it determined that a joint employer situation exists, VOSH may issue citations to either or both of the employers, depending on the specific facts of the case.
- Compliance Guidelines.
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CSHOs may recommend citations for hazardous conditions or violations of VOSH standards or the General Duty Clause found during the inspection, regardless of whether they are specifically addressed in this Directive. Plain view or other hazardous conditions that are not part of the dynamic lists questions may be addressed by CSHOs without expanding the inspection. CSHOs shall document how they identified these hazardous conditions. The intent of this provision is to facilitate the inspection by not requiring a team leader or CSHO to expand an inspection for obvious and plain view hazardous conditions that are identified.
Guidelines for assessing and verifying compliance with PSM standard provisions are provided in the dynamic list. When conducting PSM compliance evaluations of the selected unit:
a. CSHOs shall use the guidance given in the dynamic lists. The dynamic list-based evaluation of this NEP is a gap analysis formatted in a series of questions to facilitate the evaluation of various requirements of the PSM standard. Instructions for using the dynamic lists are provided in the CSHO Instructions for the Dynamic Lists contained in the PSM OSHApedia Extranet Website.
b. Expanded Inspection. If, during the course of the evaluation, the Team Leader or CSHO determines that an expanded inspection is warranted, then the Team Leader shall consult with the Regional Director and may expand the inspection to other units or areas.
Reasons for expanding an inspection may include, but are not limited to
-
Deficiencies in the employer’s PSM compliance exists outside the selected unit or dynamic list questions; or
-
Utilizing the dynamic lists questions, the CSHO identifies pervasive or recurring hazards.
CSHOs shall document the basis for this determination and include the documentation in the case file.
- Review Inspection History and Abatement.
During the course of the inspection, the CSHO shall review abatement for all PSM citations issued within the previous six years to determine whether the hazard still exists. If a hazard exists, the CSHO shall determine whether there has been a failure to abate in accord with the VOSH FOM, and issue a notice for failure to abate as appropriate.
In cases where a follow-up inspection has been completed since the abatement was in place, it is not necessary for CSHOs to review the abatement.
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- Citations.
Citations for violations shall be issued in accord with the VOSH FOM. The following additional directions shall be used for citations of PSM violations:
a. The requirements of the PSM standard are intended to eliminate or mitigate catastrophic releases of HHC. The provisions of the standard present closely interrelated requirements, emphasizing the application of management controls when addressing the risks associated with handling or working near
HHC.
b. Any violation of the PSM standard is a condition that is likely to cause death or serious physical harm.
c. Violations of the PSM standard should not normally be classified as “other-than-serious.”
F. Program Evaluation.
This NEP will be evaluated using data collected from case files and follow-up site visit reports submitted by each Regional Director to their CSHOs. The data will be evaluated to determine the impact of VOSH inspections on the reduction of PSM hazardous conditions at each worksite. Each region shall designate an individual who will work with the OCPSEI.
G. Outreach.
OTI, in conjunction with the DEP and the Office of Public Affairs, has developed chemical plant PSM information and training materials. This information has been made available to the Regional Directors for distribution to the Regional Offices and Consultation Program offices. Each Regional Office is encouraged to develop outreach programs that will support its enforcement efforts. OSHA’s Alliance program can assist with the coordination of efforts and reaching out to stakeholders. Suggested outreach products and activities include the following:
-
Letters and news releases announcing the implementation of this Directive.
-
Seminars on chemical plant and refinery process safety topics tailored for specific audiences, such as employers, worker groups, local trade unions, apprentice programs, equipment manufacturers, and material suppliers.
-
Collaboration with VOSH’s cooperative program participants, including Voluntary Protection Programs, Strategic Partnership, and Alliance Program participants, to share success stories and technical information concerning effective means of controlling and reducing or eliminating potential catastrophic releases of HHCs.
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H. OSHA Information Systems (OIS) Coding.
The instruction below is for recording inspections under this NEP. Appendix A, Inspections at PSM Facilities: Type of Inspection Activity and Related Coding, is a flow chart provided to help CSHOs to determine the proper inspection coding based on the host and contractor employer(s) activities.
Programmed Inspections: When an inspection is initiated because a host employer is targeted for an inspection related to this NEP or the inspection is conducted in conjunction with another programmed inspection, the Inspection Type shall be marked as “Programmed Planned.” “CHEMNEP” shall also be selected from the National Emphasis Programs drop-down menu. All inspections of contractors initiated as a result of host employer programmed inspection(s) will be categorized as programmed-related inspections. The inspection for the contractor must indicate “CHEMNEP” in the national emphasis programs drop-down menu.
Unprogrammed Inspections: If an inspection is initiated due to an unprogrammed activity (fatality, catastrophe, complaint or referral) related to a host employer site, the inspection type of the host employer will be entered as “unprogrammed”, and associated inspection types of contractors will be coded “unprogrammed related.” In addition, “CHEMNEP” shall be selected from the national emphasis programs drop-down menu.
If an inspection is initiated due to an unprogrammed activity related to a contractor employer, then the inspection type of the contractor employer will be entered as
“unprogrammed,” and the inspection type of the host employer will be entered as “unprogrammed-related.” In addition, “CHEMNEP” shall be selected from the national emphasis program’s drop-down menu.
In the event that the CSHO is conducting concurrent inspections of host and/or contracted employers, ensure that the related inspections are properly entered into the related activities tab of the Inspection.
“CHEMNEP” will be selected from the national emphasis programs drop-down menu for all follow-up inspections. The previous inspection number will be entered into the related activities tab of the inspection (Previous/Subsequent Inspections). See below:
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Whenever a consultation visit is made in response to this NEP, Consultation request/visit forms are to be completed and the national emphasis program "CHEMNEP" will be selected in the appropriate form.
I. Consultation.
Regional and field offices are encouraged to work with the VOSH Consultation Office to communicate the goals of this NEP. When appropriate, 21(d) Consultation Projects are encouraged to develop and conduct their own outreach activities to address exposures to process safety and other hazards.
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Appendix A
Inspections at PSM Facilities: Type of Inspection Activity and Related Coding Flow Chart
A-1
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Page A-2
A-2
Virginia OSHA Field Operations Manual UpdateDoc ID: 09-0012025
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Virginia Department of Labor and Industry Occupational Safety and Health
Field Operations Manual – Chapter on Penalties
Virginia Occupational Safety & Health
DOLI VOSH
VOSH PROGRAM DIRECTIVE: 09-001.2025 ISSUED: August 1, 2025
Subject: VOSH Field Operations Manual (FOM) (2025)
Purpose: This Directive officially issues revision 3.9 of VOSH Field Operations Manual (FOM) which was last revised in August, 2024 into the Program Directive System and establishes the effective date for its usage.
This Program Directive is an internal manual, not a statutory or regulatory rule or guidance document, and is intended to provide instructions to VOSH Personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Virginia Administrative Process Act; it does not have general application or the force of law.
Scope: This Directive applies VOSH-wide.
References: OSHA Instruction CPL 02-00-159, Field Operations Manual (October 1, 2015) OSHA Instruction CPL 02-00-160, Field Operations Manual (August 2, 2016)
Cancellation: VOSH Program Directive 09-001 (August 1, 2024) VOSH Program Directive 09-001 (August 1, 2023) VOSH Program Directive 09-001 (August 1, 2022) VOSH Program Directive 09-001 (August 1, 2021) VOSH Program Directive 09-001 (August 1, 2020) VOSH Program Directive 09-001 (August 1, 2019) VOSH Program Directive 09-001 (November 1, 2017) VOSH Program Directive 02-001G (October 1, 2013) VOSH Program Directive 02-001I (August 2, 2017)
Effective Date: August 1. 2025 Page | 1 Updated August 1, 2025
[TABLE 1-1] Virginia Occupational Safety & Health |
DOLI | VOSH
[/TABLE]
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Virginia Department of Labor and Industry Occupational Safety and Health
Field Operations Manual – Chapter on Penalties
Action: The Directors and Managers shall assure that the change contained in this revision to the VOSH FOM is adhered to by VOSH personnel.
NOTICE: Virginia Code § 40.1-49.4.P provides that
“the Commissioner annually shall adjust the maximum civil penalties stated in subsections G through J each year by the percentage increase, if any, in the United States Average Consumer Price Index for all Urban Consumers (CPI-U), as published by the Bureau of Labor Statistics of the United States Department of Labor, from its monthly average for the previous calendar year. The amount of each adjustment to the maximum civil penalties shall be rounded to the nearest whole dollar. The adjustments to the maximum civil penalties shall be effective on each August 1.” (Emphasis added).
REFERENCE: The CPI-U for 2024 was 1.02598.
Federal Register :: Adjustments to Civil Penalty Amounts
The maximum penalty provisions of the above-named directive are enforceable by the VOSH Program under the terms of Virginia Code § 40.1-49.4.P on August 1, 2025, and apply to all VOSH inspections opened on or after August 1, 2025.
Expiration Date: Not Applicable
Gary G. Pan Commissioner
Distribution: Commissioner of Labor and Industry Deputy Commissioner(s) Assistant Commissioner(s) VOSH Directors and Managers VOSH Compliance and Cooperative Programs Staffs Division of Hearing and Legal Services OSHA Region III and OSHA Norfolk Area Office
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[TABLE 2-1] The maximum penalty provisions of the above-named directive are enforceable by the VOSH Program under the terms of Virginia Code § 40.1-49.4.P on August 1, 2025, and apply to all VOSH inspections opened on or after August 1, 2025.
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Document Background: On August 2, 1977, VOSH submitted a compliance manual for safety and health compliance officers. By letters dated November 20, 1978, and August 2, 1979, VOSH informed federal OSHA that it would adopt and implement federal OSHA’s Field Operations Manual and Industrial Hygiene Field Operations Manual.
VOSH adopted subsequent federal changes to these manuals by letters dated August 26, 1981, February 9, 1984, and June 18, 1984.
On July 30, 1984, VOSH submitted to federal OSHA a completely revised FOM, reflecting changes to the federal manual through June 1, 1984, with only minor changes being made to accommodate Virginia procedures and terminology. The VOSH FOM was revised on May 20, 1986, and incorporated administrative and procedural changes which resulted from the merging of the Bureau of Occupational Health of the Virginia Department of Health into the Department of Labor and Industry. Subsequently the FOM was updated on March 1, 1991, and again on July 1, 1997. On January 1, 2002, VOSH completed and issued a comprehensive redrafting of the FOM to generally conform to the then existing federal FIRM, CPL 2.103. The FOM issued 01 June 2011, (Version 2.0), reflects the substantial rewrite and reintroduction of the federal FOM as reflected in CPL 02-00-148 (09 November 2009). The FOM issued October 1, 2013, addressed changes of the federal FOM reflected in CPL 02-00-150 (April 22, 2011). The FOM issued November 1, 2017, addressed changes to the federal FOM reflected in OSHA Instruction CPL 02-00-159, Field Operations Manual (October 1, 2015), OSHA Instruction CPL 02-00-160, Field Operations Manual (August 2, 2016)
This most recent change primarily updates VOSH maximum penalties in Chapter 11. As per the previous versions, this revised FOM documents VOSH internal operating procedures. It contains guidelines for scheduling inspections, conducting inspections, case file development and the writing of case narratives,
preparing citations, assessing penalties and other matters primarily related to the Compliance Officer for the operation of the VOSH program.
Summary of Changes in this update by type and form
❖ VOSH Substantive Procedural Changes: There are VOSH initiated procedural updates throughout this update. Such revisions are highlighted in yellow throughout the document for ease of use and are also listed on the document revision log on the next page.
❖ OSHA Required Substantive Changes: If there are federal OSHA required changes in this update, such revisions are highlighted in turquoise for ease of use and are also listed on the document revision log on the next page.
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[TABLE 3-1] ❖ VOSH Substantive Procedural Changes: There are VOSH initiated procedural updates | | throughout this update. Such revisions are highlighted in yellow throughout the | document for ease of use and are also listed on the document revision log on the next | page.
[/TABLE]
[TABLE 3-2] OSHA Required Substantive Changes: If there are federal OSHA required changes in this update, such revisions are highlighted in turquoise for ease of use and are also listed on the document revision log on the next page.
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❖ DOCUMENT REVISION LOG Chap. Page Subject Date Initials 11 All VOSH maximum penalty changes effective August 1, 2025 Aug 1, 2025 jw
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[TABLE 4-1] Chap. | | | Page | | | Subject | | | Date | | | Initials | | | 11 | | | All | | | VOSH maximum penalty changes effective August 1, 2025 | | | Aug 1, 2025 | | | jw |
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CHAPTER 11
PENALTIES I. Penalties
A. General Policy The penalty structure provided under §40.1-49.4, of the Code of Virginia, is intended primarily to provide an incentive toward correcting violations voluntarily, not only to the offending employer, but also to other employers who may be in violation of the same infractions of the standards or regulations. Administratively, VOSH will not issue a penalty of less than $100.
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Deterrent to Violations Proposed penalties are not designed as punishment for violations or as a source of income for the Department; however, the penalty amounts should be sufficient to serve as an effective deterrent to violations.
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Other-Than-Serious Violations In accordance with §40.1-49.4.G., Code of Virginia, other-than-serious or regulatory violations may be cited without a penalty. There is no statutory requirement that a penalty must be assessed when the violation is not serious; but a penalty must be assessed when the violation is serious.
B. Civil Penalties The following factors are used to calculate a proposed penalty.
- Type of Violation as a Factor In assessing civil penalties for violations, a distinction is made between serious and other-than-serious violations. a. Serious. The maximum penalty that may be assessed for a serious violation is $16,287 at issuance.
b. Other-Than-Serious. The maximum penalty that may be assessed for an other-than-serious violation is $16,287.
c. Willful or Repeated. Willful or repeated violations may be based on hazards classified as either serious or other-than-serious. In the case of willful or repeated violations, a civil penalty of up to $162,849 may be assessed, but the penalty may not be less than $10,000 for a willful violation.
d. Regulatory Violations. The maximum penalty that may be assessed for an other-than-serious regulatory violation is $16,287.
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e. Failure to Abate. Penalties for failure to abate a violation may be up to $16,287for each calendar day that the violation continues beyond the final abatement date.
- Statutory Authority Section 40.1-49.4.A.4.(a) provides the Commissioner with the statutory authority to assess civil penalties for violations of §40.1-49.4.
a. Section 40.1-49.4.H., Code of Virginia, provides that any employer who has received a citation for an alleged violation of a serious nature shall be assessed a civil penalty of up to $16,287for each violation.
b. Section 40.1-49.4.G., Code of Virginia, provides that, when the violation is specifically determined to be other-than-serious, a civil penalty of up to $16,287may be assessed for each violation.
c. Section 40.1-49.4. G., Code of Virginia, provides that, when violations of certain posting requirements (refer to Section I.B.14) are cited, a civil penalty of up to $16,287shall be assessed.
3. Minimum Penalties The following guidelines apply
a. Serious. The minimum penalty amount for serious violations shall be
$600 at issuance.
b. Willful. The assessed penalty for any willful violation shall not be less than $10,000. This is an OSH Act statutory minimum and not subject to administrative discretion.
- Penalty Factors Section 40.1-49.4.A.4(a), Code of Virginia, provides that, in assessing penalties, due consideration shall be given to the following factors:
a. The gravity of the violation, b. The size of the business (i.e., number of employees), c. The good faith of the employer, and
d. The employer’s history of previous violations.
Neither a penalty calculation factor, e.g., probability assessment factors, nor penalty adjustment factor, e.g., the gravity of the violation, size of the business, good faith of the employer, or the employer’s history of previous violations, shall materially affect the final penalty calculation if it would tend to dilute the penalty Page | 6 Updated August 1, 2025
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excessively.
EXAMPLE: In a particularly dangerous trenching situation or in a confined space where there is insufficient oxygen to support life, even when only one or two employees are exposed, it may be appropriate to reduce the weight that might be otherwise given to the number of employees exposed.
- Gravity of Violation The gravity of the violation primarily determines penalty amounts. It shall be the basis for calculating the basic penalty for both serious and other-than-serious violations.
a. Gravity Factors. To determine the gravity of a violation, the following two assessments shall be made: (1) The severity of the injury or illness which could result from the alleged violation.
(2) The probability that an injury or illness could occur as a result of the alleged violation.
b. Other Penalty Factors. The size of the business, the good faith of the employer, and the history of previous violations shall be taken into account in deciding whether and to what extent the gravity-based penalty (GBP) may be reduced or increased.
c. Severity Assessment. The classification of the alleged violation(s) as serious or other-than-serious is based on the severity of the injury or illness which could reasonably be expected to result from the employee’s exposure to the hazard. This classification constitutes the first step in determining the gravity of the violation. The most serious injury or illness which is reasonably predictable as a result of an employee’s exposure to the safety or health hazard cited shall be assigned a severity assessment in accordance with the following factors:
(1) High Severity. This would include death from injury or illness, injuries involving permanent disability, or chronic, irreversible illnesses.
(2) Medium Severity. This would include injuries or temporary, reversible illnesses resulting in hospitalization, substantial outpatient care of a variable but limited period of disability.
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reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment, i.e., limited out-patient care.
(4) Minimal Severity. This would include other-than-serious violations. Although such violations reflect conditions which have a direct and immediate relationship to the safety and health of employees, the injury or illness most likely to result would probably not cause death or serious physical harm.
d. Probability Assessment. The probability (likelihood or chance) that an injury or illness would result from a hazard affects the amount of the penalty to be assessed. However, probability has no role in determining the classification of the violation.
To determine penalty, the Compliance Officer, using professional judgment, shall identify and evaluate all of the factors influencing the probability of the occurrence of an injury or illness and shall assign them a weight in accordance with the relative contribution of each.
Probability shall be categorized as either greater or lesser probability
(1) Greater probability. This applies when a death or an injury or illness has actually occurred or the likelihood that an injury or illness will occur is relatively high, for example, when near miss
has actually occurred. The violation shall be assessed as “greater probability.”
(2) Lesser probability. This applies when the likelihood that an injury or illness will occur is judged to be relatively low.
(3) Violations. When violations likely to result in injury and/or illness are involved, the following circumstances shall be considered (and documented in the case file).
(a) Probability for Imminent Danger. The Compliance Officer shall assign a greater probability value for hazards that are determined to be imminent danger. See Chapter 7, Fatality and Imminent Danger, for definition and procedures for imminent danger.
(b) Probability Rating Chart. The Compliance Officer shall use the Probability Rating Chart for assessing probability in alleged hazards for situations other than where a death, injury, illness or imminent danger situation has Page | 8 Updated August 1, 2025
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actually occurred
See below for further guidance on the elements of actual or potential exposure, other considerations in determining probability and other factors affecting probability.
(c) Safety Violations. Among the factors to be considered are: 1 Number of employees exposed.
2 Frequency of exposure or the duration of employee overexposure to contaminants.
3 Employee proximity to hazardous condition (“marginal”, “in danger zone” “point of danger”).
Other factors.
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4 Weather/working conditions. 5 Employee skill level.
6 Employee awareness of hazard.
7 Pace/speed/nature of task/work. 8 Use of appropriate PPE.
9 Medical surveillance program. 10 Youth and inexperience of employees, especially those under 18 years old.
11 Other pertinent working conditions or mitigating circumstances.
EXAMPLE: Greater Probability: Five employees exposed 4-5 hours per day, installing roofing materials on a 10/12 pitch roof, gusty wind and showers. Two of the employees have less than two weeks experience, no fall protection equipment on site, no documented safety training or orientation.
Probability Rating Chart Application
Factor Rating
Number of employees: 5
Frequency: 6 Proximity: 8
Other: 8
Total: 27
Sum of 27 (rating) / 4 (factors with score) = 6.75
Rounded to: 6.7 - Greater Probability
Versus
Lesser Probability: Two employees exposed 4 hours per week, installing roofing materials on a 4/12 pitch roof, sunny and fair weather, both workers having over three Page | 10 Updated August 1, 2025
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(3) years’ experience.
Probability Rating Chart Application
Factor Rating Number of employees: 2
Frequency: 3
Proximity: 6
Other: 0
Total: 11
Sum of 11 (rating) / 3 (factors with score) = 3.67
Rounded to: 3.7 - Lesser Probability
(d) Health Violations. Program violations are not included in probability assessment, but are considered separately in Section I.B.6. Health violations typically involve exposure to chemicals, noise, infectious agents, heat stress, or non-ionizing radiation.
1 Number of workers exposed to the hazardous conditions, both at the same time and sequentially. 2 Duration of employee overexposure to hazardous levels of contaminants or other illness-producing conditions.
3 Use of appropriate personal protective equipment; whether, for example, such equipment is utilized by all exposed employees
and the employer has an effective PPE program in effect should be mentioned, or whether it is not utilized by any of the exposed employees and the employer has no program.
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medical surveillance program is in effect.
EXAMPLE: Lesser Probability: One employee exposed to chemicals 4 hours per day with no GHS update training provided, but the employee is aware of specific chemical hazards and appropriate PPE is provided and used.
Probability Rating Chart Application
Factor Rating
Number of employees: 1 Frequency: 6
Proximity: 1 Other: 0
Total: 8
Sum of 8 (rating) / 3 (factors with score) = 2.67
Rounded to: 2.7 - Lesser Probability
Versus
Greater Probability: Same facts as above (One employee exposed to chemicals 4 hours per day with no GHS update training provided, but aware of specific chemical hazards), except PPE is not provided to the employee.
Probability Rating Chart Application
Factor Rating
Number of employees: 1
Frequency: 6
Proximity: 7
Other: 0
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Total: 14
Sum of 11 (rating) / 3 (factors with score) = 4.67
Rounded to: 4.7 - Greater Probability
(e) Elements of Actual or Potential Exposure. The following three items shall normally be considered for actual or potential exposure in relation to the hazard and standard violated, and weighted accordingly (as documented in the case file). Violations with actual overexposure will usually receive a higher probability factor than comparable violations with potential overexposure. All violations shall be considered for conditions, circumstances, and/or practices at the worksite which would affect the likelihood of harmful contact, ingestion, inhalation, or other harmful exposure cited.
1 Level of Exposure. Generally, the greater the level of exposure, the greater the probability of harm. Inhalation exposure shall be considered in relation to the level above the PEL, STEL, ceiling, IDLH, or proximity to the lethal level. Ingestion or contact exposure shall take into account area and amount of contaminant in solid or liquid form, and relation to the likelihood of harmful exposure. Noise shall be considered for the level above the PEL. Other agents shall be considered in relation to the level above established limits or for the intensity of exposure where there is a dose/effect relationship.
2 Frequency/Duration of Employee Over-exposure. Generally, the greater the frequency or length of exposure, the greater the probability is for harm. Frequency of exposure (how often) may be more significant for acutely acting agents, whereas duration (how long) may be more significant for chronically acting agents.
3 Number of Employees Exposed. The probability of harm is usually dependent upon the number of employees exposed. An exception would be when the exposure situation reaches an upper Page | 13 Updated August 1, 2025
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level in which all would be affected if the event or exposure occurred.
(f) Other Considerations in Determining Probability. The following two items may also be considered in determining probability. These considerations will be used less often, but the Compliance Officer shall weigh them into the probability assessment as applicable (and document in the case file.)
1 Personal Protective Equipment. When the use of appropriate PPE is a factor, the Compliance Officer shall consider whether such equipment is utilized by all exposed employees and the extent to which such equipment is effectively utilized, if at all.
2 Medical Surveillance. Where medical surveillance is a factor, the Compliance Officer shall consider if it effectively protects the employees or if it is a defective program which only partly and inadequately protects them, or no medical surveillance at all is in effect.
(g) Other Factors Affecting Probability. There are other factors which may significantly affect the probability that the hazard will produce an injury or illness. They shall also be considered and documented:
1 Mitigating Circumstances. Situations or conditions that may lower the probability, such as specific safety or health instructions, effective training programs, evidence of correction underway, warning signs and labels or special procedures, or mandatory administrative controls providing some, though not complete protection, may be used to lower the probability.
2 Contributing Circumstances. On the other hand, contributing circumstances may be used to raise probability. This would include inappropriate or inadequate safety or health instructions, inadequate or no training, or widespread hazardous conditions or faulty equipment, with Page | 14 Updated August 1, 2025
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little or no attempt to control them, may be used to raise the probability.
- Final Probability Assessment All of the factors outlined above shall be considered together in arriving at a final probability assessment.
a. A factor shall not materially affect the final probability assessment if, based on the professional judgment of the Compliance Officer as documented in the case file, it: (1) Does not significantly influence the probability of an injury or illness causing condition, or
(2) Would tend to dilute the penalty excessively.
EXAMPLE: In a particularly dangerous trenching situation or in a
confined space where there is insufficient oxygen to support life, even when only one or two employees are exposed, it may be appropriate to reduce the weight given to the number of employees exposed.
This can be achieved by either properly classifying the hazard as an imminent danger situation which would automatically result in a greater probability assessment, or by eliminating the use of the “number of employees exposed” factor on the Probability Rating Chart, and only using the “frequency”, “proximity” and “other” factors in assessing probability.
b. When strict adherence to the probability assessment procedures would result in an unreasonably high or low gravity, the Compliance Officer shall use professional judgment to adjust the probability appropriately. Such decisions shall be adequately documented in the case file. 7. Program Violations Certain program and certification requirements have specific performance criteria within the body of their codes and can be readily processed through the gravity based penalty (GBP) structure. These include, but are not limited to: hazard communication program, respirator protection program, confined space entry program, bloodborne pathogen program, and the hearing conservation program. (Refer to the applicable program directive for further guidance).
Other program and certification requirements are not as readily processed through the GBP structure. These include, but are not limited to: accident
prevention program, first aid certification, fall protection work plan, lockout/tagout program, logging plan, effective supervision, etc.
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a. Classification. The following procedures shall generally be followed in determining the severity of the program violation (See VOSH PD 01-009A, October 15, 2007, or successor for further guidance):
(1) Other-than-serious. Program violations are classified as other-than-serious when it is documented that the employer does not have a written program or the program is missing one (1) or more element(s) and no related serious hazards exist.
(2) Serious. Program violations are classified as serious when it is documented that the employer does not have the required written program or certification and it can be documented that a related serious hazard is associated with a program deficiency.
- Gravity-Based Penalty (GBP) The GBP is an unadjusted penalty and is calculated in accordance with the following procedures: a. Severity and Probability The GBP for each violation shall be determined based on an appropriate and balanced professional judgment, combining the severity assessment and the final probability assessment.
b. For Serious Violations, the GBP shall be assigned on the basis of the following scale:
Severity Probability GBP
High Greater $16,287
Medium Greater $12,450 Low Greater $8,955
Severity Probability GBP
High Lesser $13,765 Medium Lesser $10,485 Low Lesser $7,210
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[TABLE 16-1] $16,287 $12,450 $8,955
[/TABLE]
[TABLE 16-2] $13,765 $10,485 $7,210
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NOTE: The gravity of violation is defined by the GBP which is a function of the severity and the probability.
A high gravity violation is one with GBP of $16,287 or greater.
A medium gravity violation is one with a GBP between $8,955 and $13,765.
A low gravity violation is one with GBP of $7,210.
c. Regulatory Violations Penalties to be assessed for regulatory violations are discussed in I.B.14. of this chapter.
d. Penalty Adjustment OIS shall be used for determining appropriate adjusted penalties for violations, which consider the employer’s good faith, size of business, and history.
-
No adjustment of penalty amounts for good faith is made in cases for high gravity serious violations.
-
The Regional Safety or Health Director has the option to determine that no adjustment for an other-than-serious violation may, on occasion, be appropriate and a high unadjusted penalty amount is warranted.
e. Other-Than-Serious (O-T-S) Severity Assessment For other-than-serious safety and health violations, there is only minimal severity:
(1) Other-than-serious safety and health violations judged to be of greater probability shall be assigned a GBP of $1,300 to which appropriate adjustment factors shall be applied.
(2) Other-than-serious safety and health violations judged to be of lesser probability shall be cited with no penalty.
(3) Penalties to be proposed for other-than-serious regulatory violations are discussed in the section covering regulatory violations.
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- Gravity Calculations for Combined or Grouped Violations Combined or grouped violations are normally considered as one violation and shall be assessed one GBP. (For guidance on when to combine or group violations see Chapter 10, Violations) The following procedures apply to the calculation of penalties for combined and grouped violations:
a. Combined Violations Severity and probability assessments for combined violations shall be based on the instance with the highest gravity.
It is not necessary to complete the penalty calculations for each instance or sub item of a combined or grouped violation if it is clear which instance or sub item will have the highest gravity.
b. Grouped Violations For grouped violations, the following special guidelines shall be adhered to:
(1) Severity Assessment. There are two considerations to be kept in mind in calculating the severity of grouped violations:
(a) The severity assigned to the grouped violation shall be no less than the severity of the most serious injury or illness that could reasonably be expected to result from the employee’s exposure to the hazard on any single item.
(b) If a more serious injury or illness is reasonably predictable from the grouped items than from any single violation item, the more serious injury or illness shall serve as the basis for the calculation of the severity factor of the grouped violation.
(2) Probability Assessment. There are two considerations to be kept in mind in calculating the probability of grouped violations:
(a) The probability assigned to the grouped violation shall be no less than the probability of the item which is most likely to result in an injury or illness.
(b) If the overall probability of injury or illness is greater with the grouped violation than with any single violation item, the greater probability of injury or illness shall serve as the basis for the calculation of the probability assessment of the grouped violation.
In addition, it should be kept in mind that some individual Page | 18 Updated August 1, 2025
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probability factors may be increased by grouping, and others may not. The increased values shall be used in the probability calculation if, in the professional judgment of the Compliance Officer, a more appropriate assessment will result. For example, the number of employees exposed may be increased, while the proximity factor may not.
(3) Gravity-Based Penalty. A single severity assessment and a single probability assessment for the combined or grouped violation will result from the foregoing considerations. That result shall be the basis for determining an appropriate GBP for the violation item according to the guidelines.
- Penalty Adjustment Factors Since these adjustment factors are based on the general character of a business and its safety and health performance, the factors shall generally be calculated only once for each employer. After the classification and probability ratings have been determined for each violation, the adjustment factors shall be applied subject to the limitations indicated in the following paragraphs.
a. Penalties assessed for violations that are classified as high severity and greater probability shall be adjusted only for size and history.
b. Penalties assessed for violations that are classified as repeated shall be adjusted only for size. c. Penalties assessed for regulatory violations which are classified as willful shall be adjusted only for size. Penalties assessed for violations classified as willful shall be adjusted only for size and history.
NOTE: If one violation is classified as willful, no reduction for good faith can be applied to any of the violations found during the same inspection. The employer cannot be willfully in violation and at the same time acting in good faith.
d. The rate of penalty reduction for size of business, employer’s good faith and employer’s history of previous violations shall be calculated on the basis of the criteria described in the following paragraphs: (1) Size. A maximum penalty reduction of 70 percent is permitted for small businesses. “Size of business” shall be measured on the basis of the maximum number of employees of an employer at all workplaces nationwide, including federal OSHA and State Plan States at any one time during the previous 12 months.
Information on the total number of an employer’s employees can
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generally be obtained at the inspected worksite. However, on occasion, it may be necessary to obtain or confirm the information from the employer’s headquarters. (a) The rates of reduction are as follows:
Number of Employees Percent Reduction
1-25 70%
26-100 40% 101-250 20%
251 or more zero
(b) When a small business has one or more serious violation(s) of high gravity or a number of serious violations of moderate gravity indicating a lack of concern for employee safety and health, the Regional Safety or Health Director may determine that only a partial reduction in penalty shall be permitted for size of business.
(c) An employer’s ability to pay a penalty shall not normally be investigated or considered in determining the penalty reduction for size of business. (d) However, if an employer presents convincing evidence at an informal conference of inability to pay a penalty because of financial difficulties, the Regional Safety or Health Director may determine that a penalty reduction or a penalty installment payment plan is appropriate.
Such a determination shall be documented in the case file.
(e) Where VOSH has reasonable cause to believe that employee misclassification has occurred, penalty reductions for size and good faith will NOT be afforded to the employer. (Refer to Chapter 15, I.B.3.d.)
(2) Good Faith. A penalty reduction of up to 25 percent is permitted in recognition of an employer’s “good faith” in increments of 0%, 5%, 10%, 15%, 20% and 25%.
The maximum allowable good faith reduction for “primary considerations” (see below) is 15%.
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The maximum allowable good faith reduction for written programs is 10%.
The total adjustment for good faith will be the sum of the percentage scores arrived at by the CSHO on primary considerations and written programs.
EXCEPTION: If one willful violation is found, no good faith reduction can be applied to any of the violations found during the same inspection. As stated above, an employer cannot be willfully in violation of the Act and at the same time be acting in “good faith.”
No single factor shall be used to determine good faith. Primary considerations include:
(a) The employer’s cooperation/attitude during the inspection.
(b) Whether any efforts were made to comply with safety standards before the inspection.
(c) Whether the employer promptly abates violations during
the inspection.
(d) The employer’s participation in professional organizations.
(e) Did the employer conduct worksite inspections either internally or through outside consultants, insurance companies, etc.
(f) Employee comments during interviews on the safety and health protections provided by the employer, both positive and negative will be considered.
(g) No reduction (0%) shall be given for an assessment of “not good”.
- A reduction of 5% shall normally be given when the CSHO’s assessment of the primary considerations indicates the employer’s approach to safety and health at the site was Page | 21 Updated August 1, 2025
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“acceptable”.
-
A reduction of 10% shall normally be given for a “good” assessment.
-
A reduction of 15% shall normally be given for a “very good” assessment.
(h) A 10% reduction for written programs shall normally be given if the employer has a written safety and health program, documented during the inspection, that has been effectively implemented, and also:
1 Provides for appropriate management commitment and employee involvement; worksite analysis for the purpose of hazard identification; hazard prevention and control measures, and safety and health training.
2 Has deficiencies that are only incidental.
3 Includes all programs required under VOSH standards applicable to the workplace, e.g., hazard communication, lockout-tagout, hazardous materials and emergency response, safety and health programs for construction (§1926.20), and trenching and excavation).
4 Where young persons, i.e., less than 18 years old, are employed, the Compliance Officer’s evaluation shall consider whether the employers program appropriately addresses the particular regulatory requirements for the employment of such minors, relative to the types of work they perform and the potential hazards to which they might be exposed.
5 Where persons who speak limited or no English are employed, the Compliance Officer’s evaluation shall consider whether the employer’s program appropriately addresses the particular needs of such employees, relative to the types of work they perform, and the potential hazards to which they might be Page | 22 Updated August 1, 2025
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exposed.
6 One example of the contents and framework of an effective safety and health management program is OSHA’s Voluntary Safety and Health Program Management Guidelines; Issuance of Voluntary Guidelines (See Federal Register, Vol. 54, No. 16, 26 January 1989, pp. 3904-3916, or later revisions as published).
(i) A 5% reduction for written programs shall normally be given if the employer has a documentable and effective safety and health program, but with no more than only incidental deficiencies. For example, an acceptable program will be documentable by such means as the minutes of employee safety and health meetings, employee training sessions, or other evidence of implemented programs applicable to the workplace.
(j) Only increments of 5% may be used to reduce penalties due to the employer’s good faith from 0% up to 25%; no intermediate percentages shall be used.
(k) No reduction shall be given to an employer for any
violation in the inspection where a willful, repeated, high gravity serious violation is found or a failure to abate penalty is assessed.
(l) No adjustment for good faith is made in the case of a violation that has directly contributed to the cause of a fatal accident, or a violation that has directly contributed to the cause of a non-fatal injury or illness resulting in serious physical harm to an employee.
(m) No reduction shall be given to an employer who has no safety and health program or if there are major deficiencies in the program.
(n) An employer whose inspection history includes fatality-related violations or has a willful or a significant number of serious violations within the previous three years may not receive a reduction for good faith.
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for abatement verification violations.
(p.) Where VOSH has reasonable cause to believe that employee misclassification has occurred, penalty reductions for size and good faith will NOT be afforded to the employer. (Refer to Chapter 15, I.B.3.d.)
(3) History. A reduction of 10% shall be given to employers who have not been cited by VOSH for any serious, willful or repeated violations in the past three years.
(4) Total Adjustment. The total adjustment will normally be the sum of all the adjustment factors.
No penalty reduction factors may be applied to any violation which has a. directly contributed to a fatality. Such a violation shall be penalized at $16,287 for each serious and $162,849 for each willful or repeat.
No adjustment of penalty amount may, on occasion, be appropriate for b. other-than-serious violations where the Regional Safety or Health Director has determined that a high unadjusted penalty amount is warranted. c. No penalty reduction factors may be applied to any violation which has directly contributed to a non-fatal injury or illness resulting in serious physical
harm to an employee (Reference Chapter 10.II.B.2.c on criteria for determining “serious physical harm”). Such a violation shall be penalized at $16,287 for each serious and $162,849 for each willful or repeat.
-
Effect on Penalties If Employer Immediately Corrects or Initiates Corrective Action Appropriate penalties will be assessed with respect to an alleged violation after being informed of such alleged violation by the Compliance Officer, even though the employer immediately corrects or initiates steps to correct the hazard. Such correction may be considered in calculating good faith.
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Ability to Pay An employer’s ability to pay a penalty shall not normally be investigated or considered in determining any penalty reduction. However, if an employer presents convincing evidence of inability to pay a penalty because of financial difficulties at an informal conference, the Regional Safety or Health Director may determine that a penalty reduction is appropriate. Such a determination shall be documented in the case file.
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Table 11-1
PENALTY TABLE
Severity Probability GBP Severity Probability GBP
High Greater $16,287 High Lesser $13,765
Medium Greater $12,715 Medium Lesser $10,485 Low Greater $8,955 Low Lesser $7,210
- Repeat Violations Section 40.1-49.4.J., Code of Virginia, provides that an employer who repeatedly violates VOSH requirements may be assessed a civil penalty of not more than $162,849 for each violation.
The VOSH Administrative Regulation Manual defines a repeated violation as: “... a violation deemed to exist in a place of employment that is substantially similar to a previous violation of a law, standard or Page | 25 Updated August 1, 2025
[TABLE 25-1] $16,287 $12,715 $8,955
[/TABLE]
[TABLE 25-2] $13,765 $10,485 $7,210
[/TABLE]
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regulation that was the subject of a prior final order against the same employer. A repeated violation results from an inadvertent or accidental act, since a violation otherwise repeated would be willful.”
Repeat violations may be cited for a period of three years following issuance of a final order which cites any violation of standard, regulation, or statute.
No penalty reduction factors may be applied to any violation which directly contributed to a fatality. Such a repeat violation shall be penalized at $162,849.
No penalty reduction factors may be applied to any repeat violation which directly contributed to a non-fatal injury or illness resulting in serious physical harm to an employee (Reference Chapter 10.II.B.2.c on criteria for determining “serious physical harm”). Such a repeat violation shall be penalized at $162,849.
a. Gravity-Based Penalty Factors. Each violation shall be classified as serious or other-than-serious. A GBP shall then be calculated for repeated violations based on facts noted during the current inspection. Only the adjustment factors for size appropriate to the facts at the time of the inspection shall be applied.
b. Penalty Increase Factors. The amount of the increased penalty to be assessed for a repeated violation shall be determined by the size of the employer.
(1) Smaller Employers. For employers with 250 or fewer employees, the GBP shall be doubled for the first repeated violation and quintupled if the violations have been cited twice before. If the Program Director determines that it is appropriate to achieve the necessary deterrent effect, the GBP may be multiplied by 10. The reasons for imposing a higher multiplier factor shall be explained in the file. (2) Larger Employers. For employers with more than 250 employees, the GBP shall be multiplied by 5 for the first repeated violation and multiplied by 10 for the second repeated violation.
c. Other-than-Serious Violations with No Initial Penalty. For a repeated other-than-serious violation that had no initial penalty, if a decision is made to penalize, a GBP of $200 shall be assessed for the first repeated violation, $500 if the violation has been cited twice before, and $1,000 for a third repetition.
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d. Regulatory Violations. For repeated regulatory violations, the initial penalty shall be doubled for the first repeated violation and quintupled if the violation has been cited twice before. If the Program Director determines that it is appropriate to apply a deterrent effect, the initial penalty may be multiplied by 10.
- Willful Violations Section 40.1-49.4.J., Code of Virginia, provides that an employer who willfully violates VOSH requirements may be assessed a civil penalty of not more than $162,849 but not less than $10,000 for each violation.
-
Willful violations shall be classified as serious or other-than-serious.
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There shall be no reduction for good faith.
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If a willful violation directly contributes to a fatality, a penalty of
$162,849 shall be assessed.
- A $162,849 penalty may also be assessed in cases where there is no fatality.
a. Gravity-Based Penalty Factors Each violation shall be classified as serious or other-than-serious. After determining the gravity of the violation for both severity and probability, a GBP shall be determined based on the facts noted during the inspection.
b. Determination of the Gravity of the Violation
➢ Severity of the injury/illness
High: Death from injury/illness; injuries involving permanent disability; or chronic, irreversible illnesses;
Medium: Injuries or temporary reversible illnesses resulting in hospitalization, substantial outpatient care of a variable but limited period of disability;
Low: Injuries or temporary, reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment, i.e., limited
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outpatient care.
➢ Probability that an injury/illness could occur: Greater: A death or an injury or illness has actually occurred or the likelihood that an injury or illness will occur is judged to be relatively high;
Lesser: Likelihood that an injury or illness will occur is judged to be relatively low.
(1) The Compliance Officer will determine the gravity of the violation based upon: 1) the severity of the injury or illness which could result from the alleged violation, and 2), the probability that an injury or illness could occur as a result of the alleged violation using the Probability Rating Chart.
(2) For willful violations, a severity of high, medium or low shall be assigned and a probability of greater or lesser is also assigned.
The greater probability factor shall be used if an employee(s) suffers an injury or illness as a result of a violation.
(3) Once the gravity of the violation is determined, the penalty will be adjusted for size and history
NOTE: For a willful violation, no penalty reduction will be permitted on the basis of good faith, and no penalty reduction will be permitted where there has been a fatality.
No penalty reduction factors may be applied to any willful violation which directly contributed to a non-fatal injury or illness resulting in serious physical harm to an employee (Reference Chapter 10.II.B.2.c on criteria for determining “serious physical harm”). Such a willful violation shall be penalized at $162,849.
EXAMPLE: A Compliance Officer inspects the trenching site of Employer X. Employer X has 15 employees. A review of the
employer’s history shows that the employer has been cited for serious violations within the past three years. The Compliance Officer categorizes the trenching violation as medium severity and greater probability. The Compliance Officer then determines that Employer X is entitled to a 70% reduction for size (fewer than 25 employees) and no reduction for history: therefore, the total Page | 28 Updated August 1, 2025
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penalty reduction is 70%.
Go to the following table. Look for the severity and probability factors which you have assigned to the violation. A willful violation categorized as medium severity/greater probability with a penalty reduction of 70% results in a proposed penalty of $34,500.
c. Reduction Factor for Size – Serious Willful
The reduction factors for size for serious willful violations shall be applied as shown in the following chart. This chart helps minimize the impact of large penalties for small employers with 250 fewer employees.
However, in no case shall the proposed penalty be less than the minimum, i.e., $10,000, for these employers. The rates of reduction are as follows:
Number of Employees Percent Reduction 1-25 70% reduction 26-100 40% reduction 101-250 20% reduction 251 or more zero reduction
d. Reduction Factor for History– Serious Willful A ten percent (10%) reduction for history shall be given to employers who have not been cited by VOSH for any serious, willful, or repeat violations in the last 3 years. The percentage reduction factor for history shall be added to the percentage reduction for size and the combined percentage reduction factor shall be applied at the same time. The proposed penalty shall then be determined from the table below. In no case shall a proposed penalty for a willful violation be less than $10,000.
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Table 11-2
PENALTY REDUCTIONS FOR WILLFUL VIOLATION(S)
The proposed penalty for any willful violation shall not be less than $10,000.
No penalty reduction factors may be applied to any violation which directly contributed to a fatality. Such a willful violation shall be penalized at $162,849.
No penalty reduction factors may be applied to any willful violation which directly contributed to a non-fatal injury or illness resulting in serious physical harm to an employee (reference chapter 10.ii.b.2.c on criteria for determining “serious physical harm”). Such a willful violation shall be penalized at $162,849.
e. Other-than-Serious Violations. Sections 40 through 60 of the VOSH Administrative Regulation Manual provide that an employer who violates any of the posting or recordkeeping requirements may be assessed a civil penalty of up to $16,287 for each violation. In the case of regulatory
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violations that are determined to be willful, the GBP penalty shall be multiplied by 10. In no event shall the penalty, after reduction for size and history, be less than $10,000.
f. Egregious Violations. For flagrant cases involving willful violations, an egregious, i.e., violation-by-violation, penalty procedure may be considered. Under this procedure, standard penalty calculations described in section C. are applied, but instead of grouping or combining violations for penalty purposes, each instance of noncompliance is considered to be a separate violation and a separate penalty is applied.
Compliance Officers who identify a case which could have egregious violations shall notify the Regional Safety or Health Director as soon as possible. Only the Commissioner may authorize the use of this policy and approve the assessment of egregious penalties.
- General Application The procedures that follow shall be used in determining proposed penalties for violations of VOSH regulatory requirements contained in the VOSH Administrative Regulation Manual, only when the employer has received a copy of the OSHA 300 Form through the Recordkeeping Requirements booklet or from
any other source, or had knowledge of the requirements. a. If the employer has not received the booklet or the OSHA 300 Form, and did not have knowledge, citations without proposed penalties will be issued.
b. Except as otherwise noted, penalties for regulatory violations shall have adjustment factors for size and history applied in determining the proposed penalty.
- Posting Requirements Penalties for violation of posting requirements shall be proposed as follows:
a. VOSH Notice. If the employer has not displayed (posted) the notice furnished by the Virginia Occupational Safety and Health Program (or OSHA) as prescribed in §40 of the VOSH Administrative Regulation Manual, an other-than-serious citation shall normally be issued. The unadjusted penalty for this alleged violation shall be $1,000. b. Annual Summary. If an employer fails to post the summary portion of the OSHA-300 Form or an equivalent form as required by 16VAC25-85-1904.29 during the most recent period 01 February to 30 April, as required by16VAC25-85-1904.32, even if there have been no injuries, an other-than-serious citation shall be issued with an unadjusted penalty of $1,000.
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c. Citation. If an employer received a citation which has not been posted as prescribed in §40 of the VOSH Administrative Regulation Manual, an other-than-serious citation shall be issued. The unadjusted penalty shall be $3,000.
- Reporting and Recordkeeping Requirements Section 40.1-49.4.G., Code of Virginia, provides that violations of the recordkeeping and reporting requirements may be assessed civil penalties of up to $16,287 for each violation.
a. OSHA-300 Form or Equivalent Form. If the employer does not maintain the Log and Summary of Occupational Injuries and Illnesses, the OSHA-300 Form or equivalent form as prescribed in 16VAC25-85-1904 recordkeeping requirements for recordable injuries and illnesses have occurred during the calendar year, an other-than-serious citation shall be issued. There shall be an unadjusted penalty of $1,000 for each year the form was not maintained.
(1) No Recordable Injuries or Illnesses. When no recordable injuries or illnesses have occurred at a workplace during the current calendar year, the OSHA-300 Form or equivalent form need not be completed until the end of the calendar year for certification of the summary.
(2) Significant Recordkeeping Deficiencies. An OSHA-300 with significant deficiencies shall be considered as “not maintained”.
b. OSHA-301 FORM. If the employer does not maintain the Supplementary Record, OSHA-301 Form or equivalent form, as prescribed in 16VAC25-85-1904 recordkeeping requirements, an other-than-serious citation shall be issued.
There shall be an adjusted penalty of $1,000 for each OSHA-301 form not maintained.
(1) A penalty of $1,000 shall be assessed for each OSHA-301 form or equivalent form not maintained up to a maximum of $16,287. (2) A penalty of $1,000 shall be assessed for each OSHA-301 Form or equivalent form inaccurately maintained, up to a maximum of $16,287.
(3) Minor inaccuracies shall be cited, but with no penalties.
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that the violations are willful, then other penalties, including violation-by-violation may be applied.
c. Reporting Fatalities. Employers are required to report, either orally or in writing, to the Department within eight (8) hours of any occurrence of an employment accident which is classified as a fatality. (See VOSH Administrative Regulation Manual §50 and §40.1-51.1.D. Code of Virginia.) A penalty of $5,000 shall be assessed. No adjustments shall be applied.
(1) An other-than-serious citation shall be issued for failure to report such an occurrence. The unadjusted penalty shall be $5,000.
(2) If the Program Director determines that it is appropriate to achieve the necessary deterrent effect, an unadjusted penalty of $16,287 may be assessed.
(3) If the Regional Safety or Health Director becomes aware of an incident required to be reported through some means other than an employer report prior to the elapse of the 8-hour reporting period and an inspection of the incident is made, a citable violation for failure to report does not exist.
d. Reporting hospitalizations, amputations and loss of an eye. Employers
are required to report, either orally or in writing, to the Department within twenty-four (24) hours the hospitalization of one or more persons, an amputation or loss of an eye.
(1) An other-than-serious citation shall be issued for failure to report such an occurrence. The unadjusted penalty shall be $5,000.
(2) If the Program Director determines that it is appropriate to achieve the necessary deterrent effect, an unadjusted penalty of $16,287may be assessed.
(3) If the Regional Safety or Health Director becomes aware of an incident required to be reported through some means other than an employer report prior to the elapse of the 24-hour reporting period and an inspection of the incident is made, a citable violation for failure to report does not exist.
NOTE: Part 1904 and §40.1-51.1.D of the Code of Virginia have new requirements for reporting work-related fatalities, Page | 33 Updated August 1, 2025
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hospitalizations, amputations or losses of an eye. The new rule also updates the list of employers partially exempt from OSHA record-keeping requirements. (See 79 FR 56129, Occupational Injury and Illness Recording and Reporting Requirements – NAICS Update and Reporting Revisions, September 18, 2014.)
- Failure to Abate Section 40.1-49.4.I., Code of Virginia, provides criteria for assessing civil penalties for failure to abate a violation. A penalty of not more than $16,287may be assessed for each day the violation continues past the final abatement date.
a. Application. An appropriate citation shall be issued in cases where violations have not been corrected as required.
Failure to abate penalties shall be applied when an employer has not corrected a violation which was cited previously when the previous citation has become a final order. A good faith but unsuccessful effort to abate the violation shall be taken into consideration when determining the appropriate penalty amount as indicated in later sections.
(1) No Employer Contest. If a timely notice of contest has not been filed, the citation and proposed penalties shall be deemed to be a final order of the Commissioner upon the expiration of the contest period and not subject to review by any court or agency.
Penalties for failure to abate shall be applied where abatement has not been accomplished.
(2) Employer Contests Alleged Violation(s). If an employer contests one or more of the alleged violations, the period for abatement does not begin to run, for the contested items, until the day following the entry of the final order affirming the citation by the Circuit Court or by the Supreme Court in the case of an appeal.
(a) If the employer contests only the amount of the proposed penalty, the employer must correct the alleged violation within the prescribed abatement period.
(b) If an employer contests an abatement date in good faith, a Failure to Abate notice shall not be issued for the item contested until a final order affirming a date is entered, the new abatement period, if any, has been completed, and the employer has still failed to abate.
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of less than 15 working days, a follow-up inspection may be scheduled after expiration of the abatement period, but still within the 15-day notice of contest period, provided that the employer has not actually filed such a notice.
b. Employer Contest. If an employer contests one or more of the alleged violations, the period for abatement does not begin to run (as to those items contested) until the final order has been issued, and the contest rights have lapsed or been exhausted.
If an employer has been granted an extension of abatement, a Failure to Abate Notice shall not be issued for that violation until the new abatement period has lapsed, and the employer has still failed to abate the violation.
c. Calculation of Additional Penalties. A GBP for unabated violations shall be calculated for failure to abate a serious or other-than-serious violation on the basis of the facts noted upon re-inspection. This recalculated GBP, however, shall not be less than that assessed for the item when originally cited, except as provided in I.B.16.e., Good Faith Effort to Abate, below.
(1) Method of Calculation. In those instances where no penalty was initially proposed, an appropriate penalty shall be determined after consulting with the Regional Safety or Health Director. In
no case shall the penalty be less than $1,000 per day. Adjustment factors shall then be applied to arrive at the daily proposed penalty.
(2) Only the adjustment factor for size, based upon the circumstances noted during the re-inspection, shall then be applied to arrive at the daily proposed penalty.
(3) The daily proposed penalty shall be multiplied by the number of calendar days that the unabated violation has continued, except as provided below. (a) The number of days unabated shall be counted from the day following the abatement date specified in the
citation as the final order. It will include all calendar days between that date and the date of re-inspection, excluding the date of re-inspection. (b) Normally, the maximum total proposed penalty for failure to abate a particular violation shall not exceed 30
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times the amount of the daily proposed penalty.
(c) At the discretion of the Program Director, a lesser penalty may be proposed with the reasons for doing so, e.g., achievement of an appropriate deterrent effect, documented in the case file. (d) If a penalty in excess of the normal maximum of 30 times the amount of the daily proposed penalty is deemed appropriate by the Program Director, the case shall be treated under the violation-by-violation penalty
procedures established.
(4) In unusual circumstances such as where the gravity of the violation is at the highest level (high severity and greater probability), or when the employer has willfully failed to abate the violation or has failed to abate a second time, higher penalties shall be proposed. In such situations, the proposed penalty and factors involved shall be developed in consultation with the appropriate VOSH Programs Director and the Division of Hearing and Legal Services and approved by the Commissioner.
d. Partial Abatement
(1) Partial Reduction. When the violation has been partially abated, the Regional Safety or Health Director may authorize the Compliance Officer to factor in a reduction of 25% to 75% to the amount of the assessed penalty calculated as outlined in part (2), above. The reasons for this action shall be documented in the case file.
(2) Only Some Instances Corrected. When a violation consists of a number of instances and the follow-up inspection reveals that only some instances of the violation have been corrected, the additional assessed penalty shall take into consideration the extent to which the violation has been abated.
EXAMPLE: Where three out of five instances have been corrected, the assessed penalty (calculated as outlined in part (2) above, without regard to any partial abatement) may be reduced by 60%.
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requirements shall generally incur a failure to abate penalty.
(4) Procedural Requirements. On rare occasions, when the Department decides to issue a Failure to Abate Notice for failure to comply with procedural requirements, the calculation of the assessed penalty shall consider the extent to which a violation has been substantially abated, with the daily assessed penalty (calculated as outlined in above, without regard to any partial abatement) reduced accordingly.
a. Good Faith Effort to Abate. When the Compliance Officer believes, and so documents in the case file, that the employer has made a good faith effort to correct the violation and the employer had good reason to believe that it was fully abated, the Compliance Officer may reduce or eliminate the assessed penalty that would otherwise be justified.
-
Grouping Violations of the posting and recordkeeping requirements which involve the same document (e.g., summary portion of the OSHA-300 Form was neither posted nor maintained) shall be grouped as an other-than-serious violation for penalty purposes. The unadjusted penalty for the group violations would then take on the highest dollar value of the individual items, which would normally be $1,000.
-
Access to Records
The VOSH Administrative Regulation Manual requires an employer to maintain forms and records and provide them for inspection and copying by an authorized representative of the Commissioner or by an employee, former employee or authorized representative of employees. (See VOSH Administrative Regulation Manual, §§60 and 80).
- Notification Requirements An employer who has received advance notice of an inspection, as required by §40 of the Administration Regulations Manual, must notify the authorized employee representative.
When an employer has received advance notice of an inspection and fails to notify the authorized employee representative as required by §230 of the VOSH Administrative Regulation Manual, an other-than-serious citation shall be issued with an unadjusted penalty for $2,000.
C. Criminal Penalties
- Code of Virginia Provisions The Code of Virginia provides criminal penalties in the following cases: Page | 37 Updated August 1, 2025
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a. Willful violations of a VOSH standard, rule of order causing death of an employee. (§40.1-49.4.K.); b. Giving unauthorized advance notice. (§40.1-51.3:1);
c. Giving false information. (§40.1-51.4:2); d. Refusal to answer questions; obstruction of inspection. (§40.1-10).
- Imposed by Courts Criminal penalties are imposed by the courts after trials and not by VOSH.
D. Egregious Penalties
-
Purpose Large proposed penalties, e.g., where penalties are proposed on a violation-by-violation basis, and criteria guiding approval of such penalties by the Commissioner, are based on meeting the public purpose.
-
Guidance
a. Early Identification of Cases. It is important that the Regional Safety or Health Director identify, as early as possible, cases which may be appropriate for violation-by-violation treatment. (1) Careful documentation of evidence for each violation and appropriate involvement of technical specialists required for litigation is essential to the successful pursuit of potential
egregious cases.
(2) Coordination with Headquarters must be scheduled in time for comprehensive review before the expiration of the statutory 6-month citation period.
(3) Early involvement of the Division of Hearing and Legal Services will ensure adequate legal, evidentiary, and resource coordination.
b. Criteria. Those conditions which constitute a flagrant violation of the law or of VOSH standards/regulations are appropriate for violation-by-violation handling. The following criteria shall be used by the Regional Safety or Health Director to determine whether to recommend the use of violation-by-violation citations and penalties:
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requirement: 1 Of which he has actual knowledge at the time of the violation. Such knowledge may be demonstrated through previous citation history, accident experience, widely publicized agency compliance, direct evidence of specific
recognized jobsite hazards or other appropriate factors; and 2 Intentionally, through conscious, voluntary action or inaction, having made no reasonable effort to eliminate the known violation.
(2) Cases must fall in at least one of the categories given in the following list, (a) through (f).
(a) The violations resulted in worker fatalities or a large number of injuries or illnesses.
(b) The violations resulted in persistently high rates of worker injuries or illnesses.
(c) The employer has an extensive history of prior violations of VOSH law.
(d) The employer has intentionally disregarded safety and health responsibilities.
(e) The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his duties under the law.
(f) The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that
might be in place.
(3) Cases which satisfy only one of the two main criteria, above, are not suitable for violation-by-violation penalties. For example, an employer who has an extensive history for the case in question may not be subject to egregious penalties.
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to ensure that the highest professional standards are met in the conduct of inspections, the issuance of citations and the litigation of these cases.
(1) Documentation. Whenever a case is proposed for violation-by-violation treatment, fully detailed written responses to the questions in the appendix must be developed. Supporting documentation shall be provided and cross-referenced whenever possible. Mandatory use of these questions is intended to provide a consistent format to aid in review of these cases, as well as to ensure as much as possible uniformity of case development across the state.
(2) Evidence. Documentary support shall ordinarily be planned for and obtained early in the investigation.
(a) The evidence necessary to support citations being considered for violation-by-violation penalty sanctions shall be included in the case file. Such evidence must be present for each separate violation.
1 Photographs, videotapes, audiotapes, sampling data, and witness statements shall be used whenever possible to provide supporting evidence of violative conditions.
2 Company documents supporting knowledge of that standard and the violative conditions as well as willfulness of the violation shall be diligently sought and obtained by interrogatories as appropriate.
3 Examples of such documents are internal audit reports, consultant or insurance company reports, trade association articles, minutes from safety meetings, complaints from employees, memoranda and other correspondence from safety personnel, especially from plant (or site) safety to plant (or site) management.
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industries.
(b) Employers must be asked explicitly
1 If and when they recognized the hazardous nature of each of the violations; 2 If they knew what VOSH’s standards require and, if so, what steps the company had taken to abate the violations and why the apparent violations had not been corrected;
3 Whether they knew of the documents identified under subparagraph (a), above, and what those documents contained.
(c) Their response shall be carefully documented in writing (verbatim, if possible). An attempt shall be made to have a second person present as a witness, particularly when dealing with potentially compromising matters.
(d) Signed employee statements shall be obtained routinely to support each of these violations in as much detail as possible.
(e) Employee exposure and the nature and extent of injuries or illnesses related to the violations shall be carefully and
adequately described.
(f) The need for interrogatories and medical access orders shall be decided and documents obtained as soon as possible.
(g) The need for experts shall also be decided and necessary arrangements made as soon as possible. It is anticipated that experts will be needed for cases involving complex violations, such as ergonomics or abatement methods.
(h) Particular attention shall be paid to anticipating and preparing for possible employer defenses in accordance with the guidelines in this FOM.
(3) The Division of Hearing and Legal Services Involvement. Early involvement of the Division of Hearing and Legal Services is essential to examine and evaluate the documentation and other Page | 41 Updated August 1, 2025
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Virginia Department of Labor and Industry Occupational Safety and Health
Field Operations Manual – Chapter on Penalties
evidence supporting the violations and to determine whether expert witnesses or depositions will be necessary, as well as to provide sufficient time for the Division of Hearing and Legal Services to write an opinion on the merits of the case.
d. Citations. The law authorizes penalties to be proposed for each violation but limits the maximum penalty that can be proposed. In accordance with the guidelines, the following procedures shall be adhered to in issuing citations with violation-by-violation penalties.
(1) Each separate violation must have its own Alleged Violation Description which will describe the particular conditions associated with that violation instance.
(2) Each separate violation must have its own penalty calculated in accordance with the procedures given in this Chapter.
e. Case Review. The procedures and timetables for significant case review will be followed in all cases involving violation-by-violation citations.
(1) The Regional Safety or Health Director shall notify the Program Director of a potential egregious case. The Program Director shall, in turn, notify the Commissioner of the following:
(a) Establishment name; (b) Regional Office of jurisdiction;
(c) Six-month date; (d) Opening conference date;
(e) General type of apparent violations, e.g., safety, health, recordkeeping.
(2) Regional Safety or Health Director(s) shall take care not to expand the inspection beyond what they can reasonably expect to accomplish within these time frames.
(3) The Program Director shall coordinate the provision of needed technical support and expert witnesses and may request assistance from federal OSHA, if necessary.
(4) The Regional Safety or Health Director shall complete his part of the significant case review as soon as possible, but not later than 45 days prior to the 6-month date, and forward the case file to the Program Director for review.
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Virginia Department of Labor and Industry Occupational Safety and Health
Field Operations Manual – Chapter on Penalties
f. Recordkeeping Violations. If the case involves recordkeeping violations which are being considered for additional penalties, further steps are necessary.
(1) Copies of evidence supporting each recordkeeping violation proposed as egregious, as developed from the company’s occupational injury and illness logs and supplementary records, worker’s compensation records, medical records, first aid logs and other sources shall be included in the package.
(2) This evidence must support the existence of a violation for both non-recorded and mis-recorded cases. It must include the particular recordability criteria involved: whether the case involved days away from work or days of restricted work activity beyond the day of injury or onset of illness as well as evidence that the case was work-related.
NOTE: Medical records contained in the case file shall be handled in accordance with the guidelines.
Page | 43 Updated August 1, 2025
Prevention of Employment Enforcement GuidelinesDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER FOUR PREVENTION OF EMPLOYMENT
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Last Revised January 2000 Prevention of Employment – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Prevention of Employment – Page 3
- 00, Preventing Employment By Others of Former Employee
A. Coverage
The Prevention of Employment statute is set forth in § 40.1-27 of the Code of Virginia.
The statute applies to all private industry employers doing business in the Commonwealth.
B. Summary
This Virginia law prohibits an employer or any of its agents from willfully and maliciously preventing or attempting to prevent by word or writing, directly or indirectly, either a discharged employee or an employee who left employment voluntarily from obtaining employment with another person. The statutory restriction does not prevent a person from giving a truthful statement of the reason for the discharge, or a truthful statement concerning the character, industry and ability of a person who has left voluntarily. Violation of this law is a criminal offense.
C. Case Assignment
-
Regional, Field, or Central Office staff person receives complaint.
-
The claimant should be requested to write a letter documenting all information relevant to the alleged violation such as prospective employers giving the false information, former employer’s agent who gave the false information, dates the information was given, etc.
D. Investigation
-
Interviews complainant.
-
Interviews prospective employers.
-
Interviews former employer.
-
Reviews personnel file and attendance record of the complainant employee.
-
Reviews employer’s policy for handling inquiries regarding former employees.
-
Upon review of all facts, findings, testimonies, etc., representative determines the validity of claim.
E. Informal Resolution
Representative will attempt informal resolution: Prevention of Employment – Page 4
- Discuss findings and determination with employer.
2. Inform employer
(1) False statements must be retrieved and rectified immediately.
(2) A check will be made in a reasonable amount of time with prospective employers to determine if statements have been retracted.
(3) Criminal action may be taken if informal compliance is not obtained.
- Future Compliance
In order to assure future compliance, advise employer to be extremely cautious about characterizing the quality of work performed by a former employee. As a precaution against unwitting violations of the law, employers may want to establish a central point of contact with the company to handle inquiries regarding former employees to ensure that information given out to other prospective employers of the former employee is accurate. Employers should avoid situations where they may be exposed to an allegation that information provided by them has prevented employment of former employees. As a general rule, employers should merely confirm the employee’s dates of employment and job title, without characterizing the employee’s service.
F. Employer Refuses to Comply
-
Discuss the case with the Supervisor. Request permission to take criminal action.
-
If Supervisor’s approval is received, prepare the case file and request the assistance of the Commonwealth Attorney in prosecuting the case.
Fluorescent Safety Shirts Compliance GuideDoc ID: 2016
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COMMONWEALTH of VIRGINIA
DEPARTMENT OF LABOR AND INDUSTRY
C. Ray Davenport Main Street Centre COMMISSIONER 600 East Main Street, Suite 207 Richmond, Virginia 23219
PHONE (804) 371-2327
FAX (804) 371-6524 July 7, 2016 C. Brian Bacon, SHRM-CP, PHR Corporate Relations Director David A. Nice Builders, Inc. 4571 Williamsburg, VA 23188
Dear Mr. Bacon
This is in response to your June 30, 2016 letter addressed to the Jennifer Rose, Safety Program Director, Virginia Department of Labor and Industry.
You ask for guidance regarding the use of fluorescent safety shirts in reference to the Virginia Occupational Safety and Health Reverse Signal Operation regulation. I have paraphrased your question as follows: Are fluorescent safety t-shirts an acceptable alternative to the required vest or jacket for designated observers/ground guides during daytime work operations?
The Virginia Occupational Safety and Health (VOSH) Reverse Signal Operation, 16VAC25-97-40 regulation requires that designated observer/ground guides shall “be provided with and wear during daytime operations a safety vest or jacket in orange, yellow, strong yellow green or fluorescent versions of these colors” and “be provided with and wear during nighttime operations a safety vest or jacket with retroreflective material in orange, yellow, white, silver, strong yellow green or a fluorescent version of these colors and shall be visible at a minimum distance of 1,000 feet”. The purpose of the regulation is to provide comprehensive protection to employees and employers exposed to reverse operation traffic of vehicles, machinery and equipment in construction and general industry work areas. This regulation is modeled on the Manual on Uniform Traffic Control Devices (MUTCD). The MUTCD sets minimum standards and provides guidance to protect workers from vehicular traffic. Section 6E-3 of the MUTCD is similar to the Virginia regulation in that it requires “for daytime work, the flagger's vest, shirt, or jacket shall be orange, yellow, strong yellow green or fluorescent versions of these colors”.
The MUTCD allows for shirts, or alternatively vests or jackets. Therefore, it is a reasonable extension to allow the same of the VOSH Reverse Signal regulation. The intent of the standard would be met if employees serving as designated observers/ground guides were to wear a solid color t-shirt that is one of the colors listed in the VOSH Reverse Signal Operation regulation. For daytime operations, the t-shirt is not required to be retroreflective.
If you need additional information or have further questions, please contact me.
Sincerely,
Jennifer L. Rose, CSP VOSH Safety Program Director
Defining "Employee" for VOSH EnforcementDoc ID: 06-003
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VOSH PROGRAM DIRECTIVE: 06-003 (e-version) ISSUED: May 13, 1986
SUBJECT: Definition of “Employee” for Purposes of VOSH Enforcement Program
A. Purpose.
This directive provides guidelines for determining which people on a jobsite are “employees” for the purposes of the Occupational Safety and Health Act of 1970 and the VOSH Program.
B. Scope.
This directive applies VOSH-wide.
C. Action.
The Assistant commissioner, Enforcement Directors and Regional Supervisors shall assure that the determination of who is an “employee” for the purposes of the OSH Act of 1970 and the VOSH Program shall adhere to section “E. Guidelines” of this directive and to other relevant OSHA Review Commission Decisions. The issue of who is an “employee” should be dealt with on a case by case basis and where necessary a legal opinion based on the individual facts of the inspection should be sought from the legal section.
D. Background.
VOSH Enforcement Divisions have recently been confronted with a number of cases where the decision to issue a citation was dependent on whether or not the individual exposed to the hazard (i.e. family member of business owner; sole owner of business; President, Vice-President or Stockholder in
Corporation; Partner in a Partnership, etc.) Was considered an “employee” for the purposes of the OSH Act of 1970 and the VOSH Program. This directive summarizes OSHA Review Commission decisions on the issue of who is an employee for purposes of the OSH Act and adopts the general guidelines of the Review Commission in this area as VOSH policy.
E. Guidelines.
Section 3(6) of the OSH Act of 1970 defines the term “employee” as “an employee of an employer who is employed in a business of his employer which affects commerce.” (Virginia Code Section 40.1-49.3 defines “employee” in essentially the same manner). OSHA regulation 29 C.F.R. § 1975.4(a) provides that:
Any employer employing one or more employees would be an “employer engaged in a business
affecting commerce who has employees” and, therefore, he is covered by the Act as such. (Emphasis added).
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Therefore, the employer need only have one ”employee” exposed to a hazard, for a citation to be issued.
The OSHA review Commission has issued decisions on the following fact situations:
- The Act does not apply to a self-employed person or sole owner of a business who is the only one exposed to the hazard cited.
Gene L. Willison, Contractor, 1974-75 OSHD ¶ 19,757 (1975) (“Only the sole proprietor drove the vehicle, and the Judge ruled the Act does not apply to an employer who is a worker and the
only one endangered.”)
- A company’s President, Vice President and Plant Manager are “employees” for the purposes of the Act when they are performing work o the site for the employer and are exposed to the hazard cited.
Hydraform Products Corp., 7 OSHC 1995, 1979 OSHD ¶ 23,825 (1979) (“The employer also argued unsuccessfully that since only the company president was exposed to the hazard because only he worked near it and then only after all other employees had left the premises, the citation should be vacated. The argument is rejected because the employer’s president, as a workingman, is as much entitled to protection under the Occupational Safety and health Act as any other employee.”)
D & H Pump Service, Inc., 5 OSHC 1485, 1976-77 OSHD ¶ 20,950 (1976) (“Employer’s vice-
president, who regularly spends 40 hours per week working with shovel in excavation, is employee within meaning of Occupational Safety and Health Act, and is entitled to safe and healthful working conditions.”)
Dri-Mix Products Corp., 3 OSHC 1191, 1974-75 OSHD ¶ 19,404 (1975) (The plant manager was an employee within the meaning of the act, as was the president).
Kensington Electric Products Co., Inc., 1 OSHC 3095, 1971-73 OSHD ¶ 16,255 (1973) (The president of a corporation and the plant superintendent, two major stockholders in the corporation, were held to be employees because they regularly contributed substantial services by directing and supervising plant operations).
- A partner in a partnership is an “employee” for the purposes of the Act when he/she is
performing work on the site for the employer and is exposed to the hazard cited.
Magnus Firearms, 3 OSHC 1214, 1974-75 OSHD 19,381 (1975) (“The store was managed by its principal owner, a Mr. Merck. The only other person who worked in the store was a ‘silent partner,’ a Mrs. Vaughn, who had invested money in the business and received half the profits.
Mrs. Vaughn tended the store an average of six or seven hours per week when Merck was absent, but did not participate in ordering merchandise, paying bills, or day-to-day decisions regarding the business. She did not consider herself an employee of Merck, but regarded her work in the store as looking after her investment.... In this case, Mrs. Vaughn was performing the duties of a salesperson, which are commonly performed by employees.... The fact that Merck did not exercise control over Mrs. Vaughn is not controlling, since the ability to control was always present. In light of all the circumstances, it is concluded that Mrs. Vaughn was an employee within the meaning of the Act...”)
- Stockholders in a corporation are “employees” for the purposes of the Act when they are
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performing work on the site for the employer/corporation and are exposed to the hazard cited.
Maverick Campers, Inc., 2 OSHC 3133, 1974-75 OSHD ¶ 18,364 (1974) (The company had lost money for two straight years and the three stockholding members worked as production employees for weekly salaries with one additional temporary employee on the payroll. The court ruled that the stockholders were employees for purposes of the Act).
Dri-Mix products Corp., 3 OSHC 1191, 1974-75 ¶ 19,404 (1975) (“The company president and
his two sons, along with the plant manager, were the individuals using the stairs. As stockholders in a “Subchapter S” corporation, the president and his sons claimed that they were not “employees” within the meaning of the Act. The Judge rejected this contention on the ground that they performed functions on behalf of the corporation during their daily work completely apart from their services as shareholders. The plant manager was also an employee within the meaning of the Act.”)
- An employer’s family embers are “employees” for the purposes of the Act when they are performing work on the site for the employer and are exposed to the hazard cited.
Howard M. Clauson Plastering Co., 5 OSHC 1760, 1977-78 OSHD ¶ 21,759 (1977). (Employer’s family members who are engaged in construction activities on employer’s behalf are covered by provisions of the OSH Act).
[Note: There is a specific exemption in the OSH Act which provides that members of the immediate family of a farm employer are not regarded as employees for purposes of the Act.]
As evidenced by the preceding cases, a citation can be issued to an employer whenever any of the following persons is the only worker/employee exposed to the identified hazard and they are not self-employed or the sole owner of the business or corporation:
-
President, Vice President, Plant Manager or any other member of the management of the company;
-
A partner in a partnership;
-
Stockholder in a corporation
[Note: if all the corporation’s stock is owned by one person, that person would be considered a sole owner of the corporation.];
- A member of the owner’s family (unless the business is a farming operation, as noted earlier).
Review Commission decisions are reliable legal authority for VOSH to take into court; however, Virginia courts are not bound by these federal decisions and they can and have in the past completely ignored Federal OSHA case law. Nonetheless, the cases summarized in this memorandum do provide us a sound legal basis to issue citations to Virginia employers in similar situations.
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DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner for VOSH Directors and Supervisors Compliance Safety and Health Staff Voluntary Compliance and Training Staff OSHA Regional Administrator, Region III
Overhead High Voltage Line Safety ProgramDoc ID: Local
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DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-221E ISSUED: 01 May 2018
SUBJECT: State Emphasis Program: "Overhead High Voltage Line Safety for both General Industry and Construction"
Purpose CHANGE II: Revisions in this Change include updating the Penalty section and the coding system from Integrated Management Information System (“IMIS”) to the current OSHA Information System (“OIS”). CHANGE I: This revised Directive updates old references and renumbers this local emphasis program (LEP) to conform to the Program Directives= new classification and numbering system (See VOSH Directive 01-001A). This Directive continues the procedures to be followed for this LEP and transmits it to field personnel.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope. This Directive applies to all VOSH personnel, and specifically to Occupational Safety Compliance and Cooperative Programs personnel.
References Overhead High Voltage Line Safety Act, Va. Code ''59.1-406 through 59.1-414 VOSH Program Directive 12-246 (August 1, 1992) Memorandum from Elizabeth A. Andrews, dated October 24, 1996
Cancellation VOSH Program Directive 14-221D (April 1, 2003)
Action. Directors and Managers shall assure that procedures established in this Directive are adhered to in conducting inspections which comply with this local emphasis program.
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Consultation Programs Manager Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH DLS and OIS Staffs 1
[TABLE 1-1] | DOLI | | Virginia Occupational Safety & Health | | VOSH
[/TABLE]
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Effective Date CHANGE II: 01 May 2018 CHANGE I: 01 April 2003
Expiration Date Not Applicable – remains in effect until cancelled or superseded.
2
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I. Background and Summary.
The Overhead High Voltage Line Safety Act, Va. Code '' 59.1-406 through 59.1-414, defines the conditions under which work may be carried on safely and provides for the safety arrangement to be taken when any person engages in work or other activity in close proximity to overhead high voltage lines [see also VOSH Program Directive 12-246A (02/15/04), or its successor].
Additionally, a fatality analysis, prepared by VOSH Safety Compliance, concluded that a special emphasis program effort is warranted. By increasing VOSH compliance presence, this State Emphasis Program (SEP), formerly Local Emphasis Program (LEP), will increase general industry and construction industry awareness of the hazardous conditions existing on their worksites concerning overhead high voltage lines.
This revised SEP provides procedures which will more effectively guide the CSHO during inspections of general industry and construction activities in close proximity to overhead high voltage lines.
Inspection scheduling procedures, outlined in the VOSH FOM, cannot be used in scheduling inspections for activity in close proximity to overhead high voltage lines. These operations tend to begin and end quickly and must be inspected while they are in progress. Consequently, the following procedures are prescribed in scheduling these inspections.
II. Procedures.
- All compliance personnel shall be instructed to be on the lookout for general industry and construction activities in close proximity to overhead high voltage lines. Every observation of these general industry and construction activities shall be handled as follows:
a. Regardless of whether or not a violation is observed, whenever a CSHO sights or receives any other notice of a general industry or construction operation in close proximity to overhead high voltage lines (including nonformal complaints, other government agency referrals, and reports from members of the public), the CSHO shall:
(1) Make note of the state and condition of the work operation insofar as it is known, including any apparent serious hazards.
(2) Note the name and address or location of the worksite and the contractor (where applicable) performing the operation, if known.
(3) Note if violations or unsafe conditions are observed in plain view. Refer to IV.C., below, if no violations or unsafe conditions are observed.
b. All general industry and construction work activities in close proximity to overhead high voltage lines brought to the attention of the Occupational Safety Division shall be inspected if violations or unsafe conditions are observed in plain view. The CSHO shall notify his supervisor at the earliest convenient time that an inspection has been opened pursuant to this SEP.
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c. No inspection of a general industry or construction work activity in close proximity to overhead high voltage lines shall be conducted if it is apparent that there is compliance with all VOSH standards governing general industry or construction operations. When no inspection is conducted, the CSHO shall record this for the purposes of the OIS system according to the guidelines in IV.C. of this Directive.
d. Nonformal complaints and other referrals involving general industry and construction activities in close proximity to overhead high voltage lines shall be scheduled as unprogrammed inspections under the SEP, conducted in accordance with procedures found in the VOSH FOM. Such notices, therefore, need not be responded to with the usual letter to the employer.
- Although sightings normally will be those which occur during the course of routine travel during duty or nonduty hours, the discovery of these work activities may be the result of a specific search to find activities in close proximity to overhead high voltage lines, at the discretion of the Commissioner. Verification of information received from sources other than CSHO observation, as indicated in II.1.a. of this Directive, is also permitted under this
SEP.
-
Documentation of the events leading up to the observation or the reporting of general industry and construction activities within close proximity of overhead high voltage lines shall be maintained by the regional office in case of denial of entry.
-
When an inspection is not conducted because consent has not been obtained, a warrant normally shall be sought in accordance with the current procedures for handling such cases.
A warrant may not be necessary, however, if the violations are in plain view. In such situations, the Regional Director shall contact the Director of the Division of Legal Support.
- The scope of inspections conducted under this SEP shall normally be limited to activities in close proximity to overhead high voltage lines. If the inspection is to be expanded, the principles given in the VOSH FOM shall be followed.
III. Penalties. No penalty reduction factors may be applied to any violation of ' 59.1-408 of the Overhead High Voltage Line Safety Act observed during inspections conducted under this SEP, or during other inspections where general industry and construction activities are found within close proximity to overhead high voltage lines. The maximum allowable penalty for situations where a powerline is contacted or an arc flash occurs shall be based on the classification of the violation in accordance with Va. Code §40.1-49.4.O.
During settlement discussions, Directors may consider penalty reductions for financial distress and employer size, as provided in the VOSH FOM.
IV. Recording in OIS. The following guidelines shall be applied when recording inspections conducted under this State Emphasis Program (“SEP”) or other inspections where general industry and construction activities within close proximity to overhead high voltage lines are found:
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A. Programmed Inspections. A programmed inspection conducted under this SEP shall be coded as “OHPWRLNE” in the State Emphasis Program block and as Programmed Planned” in the Initiating Type block OIS. Inspections under this SEP will be typically coded as “Safety” inspections in the “Inspection Category” block.
B. Complaint Inspections. On the OIS Inspection Form, inspections involving activities conducted within close proximity to overhead high voltage lines which are initiated as a result of a complaint, referral, or fatality/catastrophe, shall be coded as “OHPWRLNE” in the State Emphasis Program block and as the appropriate “unprogrammed” activity in the Initiating Type block regardless of whether they are listed on a cycle list.
C. No Inspection Conducted. When no inspection of activities conducted within close proximity to overhead high voltage lines is done for any of the reasons listed in II.1 through I.5 of this Program Directive, the OIS shall be updated in the Reason No Inspection block.
D. Code placement of “OHPWRLNE” is necessary in the State Emphasis Program field for all consultation activities, i.e., requests, visits, and compliance assistance conducted at establishments in the NAICS codes included in this SEP.
[NOTE: If you have any questions regarding the proper way to record in OIS, please contact the VOSH OIS section.]
5
Seat Belt Use in Vehicle OperationsDoc ID: 06-201
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VOSH PROGRAM DIRECTIVE: 06-201 ISSUED: March 1, 2005
SUBJECT: Use of 1910.132(a) and 1926.95(a) to Require Use of Seat Belts in General Industry and Construction Vehicles Potentially Subject to Tip over Due to Operational or Workplace Hazards
A. Purpose.
This directive transmits to field personnel the interpretation of sections 1910.132(a) and 1926.95(a) to
require the use of seat belts during the operation of general industry and construction vehicles. This interpretation includes, but is not limited to, motorized vehicles covered under sections 1926.601 and 602, 1910.178, and other construction or general industry vehicles which present the same hazard of potential tip over due to either method of operation or the presence of workplace hazards.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel.
C. Reference.
Occupational Safety and Health Review Commission (OSHRC) case law (see page 5).
Occupational Safety and Health Administration (OSHA) Directive CPL 2-1.28A, Compliance Assistance for the Powered Industrial Truck Operator Training Standards.
OSHA Interpretation from Richard E. Fairfax, Director, Directorate of Compliance Programs, OSHA, dated March 8, 2002 entitled, “Clarification of PIT requirements covering: fall protection and safety platforms, seatbelts, LP-gas storage, smoking, and eye wash stations.”
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D. Cancellation.
Not Applicable.
E. Action.
The Commissioner, Directors and Managers shall ensure that the procedures established in this directive
are adhered to in inspections involving the operation of general industry and construction vehicles including, but not limited to, motorized vehicles covered under sections 1926.601 and 602, 1910.178, and vehicles of similar make and use which present the same hazard of potential tip over due to either method of operation or the presence of workplace hazards.
This directive applies to
-
Closed cab vehicles such as dump trucks which are provided with original equipment seat belts from the manufacturer or as a dealer installed option, but may not be provided with a traditional roll over protective system (ROPS); and
-
All other general industry or construction vehicles that have been provided with seat belts from the manufacturer or as a dealer installed option and ROPS.
If the original equipment seat belts, provided by the manufacturer or as a dealer installed option, have been removed or damaged, sections 1910.132(a) or 1926.95(a) shall be cited for the employer’s failure to “provide” seat belts.
If the vehicle was never supplied with seat belts by the manufacturer or as a dealer installed option, VOSH may cite an employer for the lack of seatbelt use when VOSH can document that an employer has been specifically notified about and offered a retrofit program by the manufacturer but has not retrofitted an applicable powered industrial truck. The decision to issue a citation will be made on a case-by-case
basis. [NOTE: Reference OSHA interpretation from Richard E. Fairfax, Director, Directorate of Compliance Programs, OSHA, dated March 8, 2002 entitled, “Clarification of PIT requirements covering: fall protection and safety platforms, seatbelts, LP-gas storage, smoking, and eye wash stations.”]
Use of seat belts at all times during operation of covered vehicles shall be enforced in general industry by citing section 1910.132(a) which provides:
“Protective equipment, including personal protective equipment for eyes, face, head and extremities...shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards of processes or environment...encountered in a
manner capable of causing injury or impairment in the function of any part of the body through...physical contact.”
Use of seat belts at all times during operation of vehicles as described above shall be enforced in the construction industry by citing 1926.95(a) which provides:
“Protective equipment, including personal protective equipment for eyes, face, head and
2
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extremities...shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards of processes or environment...encountered in a manner capable of causing injury or impairment in the function of any part of the body through...physical contact.”
As described in the Background section below, a line of Occupational Safety and Health Review Commission (OSHRC) decisions holds that sections 1910.132(a) and 1926.95(a) can be used to enforce
the use of seat belts in various kinds of vehicles subject to tip over.
F. Definitions.
For purposes of this directive, the term “method of operation” includes, but is not limited to the following:
If the covered vehicle, when driven at excessive speed, could cause the operator to lose control, causing the vehicle to become unstable (e.g., skid, tip over, or fall off a loading dock or other elevated walking or working surface);
If the covered vehicle can become unstable due to its ability to carry loads high off the ground.
Moving loads upward, downward, forward, and backward can cause a shift of the center of gravity in the vehicle and can adversely affect its stability;
If the covered vehicle can become unstable when a load is raised or moved away from the vehicle (i.e., the vehicle’s longitudinal stability is decreased in such operational situations);
If the covered vehicle can become unstable when a load is not properly placed on the lifting mechanism, is unbalanced, or exceeds the manufacturer’s recommended lifting capacity; or
If the covered vehicle can become unstable during sharp turns due to its characteristic mode of
steering, i.e., with the rear wheels while being powered by the front wheels.
For purposes of this directive, the term “presence of workplace hazards” includes, but is not limited to the following:
If the covered vehicle can become unstable while operating on rough, uneven, slippery or sloped surfaces;
If the covered vehicle has mechanical difficulties (e.g., malfunctioning brakes) which could cause the driver to lose control of the vehicle or limit the driver’s ability to take emergency avoidance measures;
If the covered vehicle is subject to operation in narrow aisles, blind spots or intersections where an operator could have to take emergency avoidance measures in the presence of expected or unexpected pedestrian traffic or employees working close to the path of travel; or
If the covered vehicle is subject to operation in the general vicinity of other motorized vehicles where an accidental collision could cause the covered vehicle to become unstable.
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G. Effective Date.
March 1, 2005.
H. Expiration Date.
Not Applicable.
I. Background.
Federal OSHA, in the preamble to its Powered Industrial Truck Operator Training, Final Rule, discussed hazards associated with driving powered industrial trucks:
“For example, operators of sit-down rider trucks are often injured in tipover accidents when they attempt to jump clear of the vehicle as it tips over. Because the operator’s natural tendency is to jump downward, he or she lands on the floor or ground and is then crushed by the vehicle’s overhead guard. Therefore, operators of sit-down trucks need to be trained to remain in the
operator’s position in a tipover accident and to lean away from the direction of fall to minimize the potential for injury.” (63 Fed. Reg. 66242).
“Driving a powered industrial truck at excessive speed can result in loss of control, causing the vehicle to skid, tip over, or fall off a loading dock or other elevated walking or working surface.
This condition can be made more dangerous because the load being carried sometimes partially obscures the operator’s vision.” (63 Fed. Reg. 66242).
“Other characteristics of a powered industrial truck that affect safe truck operation are: the truck’s tendency to become unstable; its ability to carry loads high off the ground; and its characteristic mode of steering, i.e., with the rear wheels while being powered by the front
wheels. Moving loads upward, downward, forward, and backward causes a shift of the center of gravity and can adversely affect the vehicle’s stability. When a load is raised or moved away from the vehicle, the vehicle’s longitudinal stability is decreased. When the load is lowered or moved closer to the vehicle, its longitudinal stability is increased.” (63 Fed. Reg. 66242).
“The workplaces where these trucks are being used also present a variety of different hazards.
The safety of industrial truck operations can be decreased by workplace conditions such as rough, uneven, or sloped surfaces; unusual loads; hazardous areas; narrow aisles, blind spots or intersections; and pedestrian traffic or employees working close to the path of travel. Finally, there are hazardous work practices that relate to all trucks, including driving at excessive speed, poor loading, and carrying unauthorized passengers. In addition, poor truck maintenance can
contribute to accidents.” (63 Fed. Reg. 66243).
Federal OSHA, in the preamble to its Powered Industrial Truck Operator Training, Final Rule, reviewed fatal accident studies involving powered industrial trucks:
“The single largest cause of accidents was vehicle tipovers....These tipovers were attributed to the following: (1) The vehicle was out of control (speeding, elevated loads, mechanical
4
--- Page 5 ---
problems, etc., 7 instances - 13 percent); (2) the vehicle was run/over the edge of the surface (4 instances - 8 percent); (3) the operator attempted to make too sharp a turn (excessive speed, unbalance load, etc., 4 instances - 8 percent); (4) an employee jumped from an overturning vehicle being pulled by an overturning vehicle (2 instances - 4 percent); (5) the vehicle skidded or slipped on a slippery surface (2 instances - 4 percent); (6) the wheels on one side of the vehicle ran over a raised surface or object (2 instances - 4 percent); and (7) the vehicle tipped over when struck by another vehicle (1 instance 2 - percent).” (63 Fed. Reg. 66245)
The VOSH Program has concluded that requiring the use of seat belts by operators of powered industrial trucks, and other vehicles covered by this directive (when the vehicles have been provided with seat belts and roll-over protective systems (ROPS)) through the enforcement of sections 1910.132(a) and 1926.95(a) will greatly assist in reducing the number of serious and fatal injuries to operators during tip over accidents. Use of the seat belt along with proper training will prevent the operator from attempting to jump free of the vehicle, and instead help him to “ride the load” down.
Following is a summary of Occupational Safety and Health Review Commission (OSHRC) case law concerning the use of sections 1910.132(a) and 1926.95(a) and 1926.28(a) to require the use of seat belts in general industry and construction vehicles:
§1910.132(a) cases
Babbit Logging, Inc., 14 OSHC 1295, 1296 (1989) - Review Commission Judge - affirmed violation of §1910.132(a) for failure to use seat belt by operator of logging skid cat (fatal accident).
Ed Cheff d/b/a Ed Cheff Logging, 9 OSHC 1883, 1889 (1981) - Review Commission Decision -affirmed violation of §1910.132(a) for failure to use seat belt by operator of logging tractor and rejected greater hazard defense because the company had not shown that alternative means of protecting employees are unavailable (company had not attempted to have plexiglass installed in the cab to protect the operators from branches, etc.).
§1926.95(a) cases
R. P. Industries, Inc., OSHRC Docket No. 00-1289 (EZ), (2000) - Review Commission Judge -affirmed violation of §1926.95(a) for failure to use a seat belt by the operator of a Caterpillar scraper that was involved in an accident.
Esprit Constructors, Inc., 18 OSHC 1179, 1182 (1997) - Review Commission Judge -affirmed violation of §1926.95(a) for failure to use a seat belt by the operator of a roller-compactor.
[NOTE: ALTHOUGH THIS DIRECTIVE SPECIFIES THE USE OF SECTIONS 1910.132(A) IN GENERAL INDUSTRY AND 1926.95(a) IN THE CONSTRUCTION INDUSTRY, THERE IS A LINE OF CASES SUMMARIZED BELOW THAT ALLOWS THE USE OF SECTION 1926.28(a) TO
REQUIRE THE USE OF SEAT BELTS IN CONSTRUCTION VEHICLES.]
5
--- Page 6 ---
§1926.28(a) cases
Concrete Construction Co., 16 OSHC 1642, 1647 (1994) - Review Commission Judge - affirmed violation of §1926.28(a) for failure to use seat belt by operator of a loader equipped with a seat belt and roll over protection on a construction site.
Daniel Construction Company of Alabama, 9 OSHC 2002, 2005 (1981) - Review Commission Decision - affirmed violation of §1926.28(a) for failure to use seat belt by operators of earthmoving equipment equipped with a seat belt and roll over protection on a construction site. The CSHO concluded that “each operator was exposed to the danger of being thrown into the path of his vehicle if a seat belt was not used. In addition, these bulldozers were fitted with roll bars. The compliance officer testified that each operator could be pinned beneath the roll bar if his bulldozer overturned while being driven over the uneven terrain on the worksite. This testimony was not refuted.”
Able Contractors, Inc., 6 OSHC 2135, 2141 (1978) - Review Commission Judge -affirmed violation of violation of §1926.28(a) for failure to use seat belt by operator of a front end loader equipped with a
seat belt and roll over protection near a trench on a construction site. Construction industry in Montana requires use of seat belts by operators of forklifts near trenches.
Sweetman Construction Company, 3 OSHC 2056, 2057 (1976) - Review Commission Decision -affirmed violation of §1926.28(a) for failure to use seat belt by operator of a scraper equipped with a seat belt and roll over protection on a construction site. The employer’s “standing rule that seat belts be worn where provided evinces a clear recognition that the use of earth-moving equipment over uneven terrain posed the ‘hazardous condition’ that an operator might fall or be thrown from the equipment.
C. Ray Davenport Commissioner
Distribution: Commissioner of Labor and Industry Assistant Commissioner – Programs Directors and Managers VOSH Compliance Staff Cooperative Programs Staff
Legal Support Staff OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
6
Use of Administrative Subpoenas and InterrogatoriesDoc ID: Administrative
--- Page 1 ---fo Ee
COMMONWEALTH of VIRGINIA
DEPARTMENT OF LABOR AND INDUSTRY
C. Ray Davenport
COMMISSIONER
Main Street Centre
600 East Main Street, Suite 207
Richmond, Virginia 23219
PHONE (804) 371-2327
FAX (804) 371-6524
MEMORANDUM
TO
Wendy Inge, Director
Division of Labor and Employment Law
nd E
loyment Law Staff
C
FROM
C. Ray
D
Buy EA
Commissioner
DATE
April 30, 2015
SUBJECT
ADMINISTRATIVE SUBPOENAS AND INTERROGATORIES ISSUED
IN ACCORDANCE WITH VA. CODE §40.1-6(4)
PURPOSE
In furtherance of the Department's mission to make Virginia a better place to work, live and
conduct business, the following policy is being adopted to assure to the fullest extent of the law
that comprehensive investigations are conducted by Labor and Employment Law personnel.
POLICY
At the discretion of the Commissioner or in those instances where cooperation from an
employer, employee or other individual is not forthcoming during the pendency of an
investigation, the Investigator shall consult with the Director of the Division of Labor and
Employment to determine whether the use of an administrative subpoena and/or interrogatories
under Va. Code §40.1-6(4) is needed to complete the investigation. The Division of Legal
Services
will
be
availabie to provide
Support in preparing the
administrative
subpoena/interrogatories.
Page | of 10
--- Page 2 ---
ADMINSTRATIVE SUBPOENAS
A. Va. Code§40.1-6(4) of the Code of Virginia authorizes the Commissioner, in the discharge of his duties, to take and preserve testimony, examine witnesses and administer oaths. In accordance with § 40.1-6(5), the Commissioner of Labor and Industry may appoint such representatives as are necessary to carry out the functions outlined in §40.1-6(4). Such appointments shall be made in writing; identify the individual being appointed, the length of appointment, and the method of withdrawal of such appointment; and specify what duties are being prescribed (see Appendix A).
B. The oath shall be administered by the commissioner's appointed representative to the witness as follows: "Do you swear or affirm to tell the truth."
C. Questioning of employers, owners, operators, agents or employees under oath shall be in private in accordance with § 40.1-6(8)(b).
D. Testimony given under oath shall be recorded by a court reporter.
E. Submission to witness; Changes; Signing. Reference: Excerpt with noted revisions, Rule 4:5(e) of the Supreme Court of Virginia is hereby incorporated by reference:
Rule 4:5.(e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and-by the-parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the effieee [COMMISSIONER'S REPRESENTATIVE] with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation [WITNESS] waive[s] the signing or the witness is ili or cannot be found or refuses to sign. If the deposition is not signed by the witness within 21 days of its submission to him, the effeer [COMMISSIONER'S REPRESENTATIVE] shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given oes and ie cepoanen may anes be used as mh as 5 though signed. arless—on-¢ on te-SupE ane 3 3 :
F. Certification. Reference: Excerpt with noted revisions, Rule 4:5(f(1) of the Supreme Court of Virginia is hereby incorporated by reference:
"(1) The effeer [COMMISSIONER'S REPRESENTATIVE] shall prepare an electronic or digitally imaged copy of the deposition transcript, including signatures and any changes as provided in subsection (e) of this Rule, and shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness."
Page 2 of 10
--- Page 3 ---G. In accordance with § 40.1-10, if any person who may be sworn to give testimony shall willfully fail or refuse to answer any legal and proper question propounded to him -concerning the subject of the examination under § 40.1-6, he shall be guilty of a misdemeanor. Such person, upon conviction thereof, shall be fined not exceeding $100 nor less than $25 or imprisoned in jail not exceeding 90 days or both. Any such refusal on the part of any person to comply with this section may be referred by the Commissioner of Labor and Industry to the appropriate attorney for the Commonwealth for prosecution.
INTERROGATORIES
A. Va. Code§ 40.1-6(4) authorizes the Commissioner, in the discharge of his duties to file a written list of relevant interrogatories and require full and complete answers to the same to be returned under oath within thirty days of the receipt of such list of questions.
B. In accordance with § 40.1-10, if any person to whom a written or printed list of such interrogatories has been furnished by the Commissioner shall neglect or refuse to answer fully and return the same under oath, he shall be guilty of a misdemeanor. Such person, upon conviction thereof, shall be fined not exceeding $100 nor less than $25 or imprisoned in jail not exceeding 90 days or both. Any such refusal on the part of any person to comply with this section may be referred by the Commissioner of Labor and Industry to the appropriate attorney for the Commonwealth for prosecution.
C, See Sample Interrogatory Format in Appendix B.
D. Interrogatories. Excerpt with noted revisions, Rule 4:8(a), (b), (d) ~ (f) of the Supreme Court of Virginia is hereby incorporated by reference:
(a) Availability; Procedures for Use. Asy—party [THE COMMISSIONER] may serve upon any etker-party [PERSON] written interrogatories to be answered by the party [PERSON] served or, if the party[ENTITY] served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall ee auc ae as is BO to a ¢ Pay EN a coat
(b) Form. The party [PERSON] answering the interrogatories shall restate each question, by photocopying it or otherwise, then insert the word "Answer" and immediately thereafter state the response to that question. The answering party [PERSON] shall attach the necessary oath and certificate of service to the answers.
(d) Answers. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party [PERSON] upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any,
within 2+ [30] days after the service of the interrogatories,exeeptthat-a defendant may
Page 3 of 10
--- Page 4 ---==
7; 7.
22 P ee
wive-@e
oh
=ren
ee ee
anne
(ce) Scope; Use. Interrogatories may relate to any matters which can be inquired into
under Rule-4-1(5) [APPLICABLE SECTIONS OF TITLE 40.1 OF THE CODE OF
VIRGINIA], and the answers may be used to the extent permitted by the rules of
evidence and for the-purpeses_of Rule 3:20. Only such interrogatories and the answers
thereto as are offered in evidence shall become a part of the record. An interrogatory
otherwise proper is not necessarily objectionable merely because an answer to the
interrogatory involves a an one or contention n that relates to fact | or aa cee os
ay to eae
Site
LS;
. 5 / *
ST 7
Page 4 of 10
--- Page 5 ---
APPENDIX A
[LETTERHEAD]
MEMORANDUM
TO: [NAME], [TITLE]
[DIVISION]
DATE: [DATE} SUBJECT: Authorization to Take and Preserve Testimony, Examine Witnesses and Administer Oaths in Accordance With Va. Code '40.1-6(4) In accordance with Va. Code '40.1-6(5), I hereby appoint [NAME], TITLE, [DIVISION] as my representative to take and preserve testimony, examine witnesses and administer oaths during the. investigation phase of the following Labor and Employment Law Division case: ! [STYLE OF LABOR LAW CASE]. h [CASE NUMBER] This appointment shall lapse one year from the date of this appointment. [COMMISSIONER NAME] Commissioner of Labor and Industry Page 5 of 10
--- Page 6 ---
APPENDIX B
SAMPLE INTERROGATORY FORMAT
COMMONWEALTH OF VIRGINIA
AT LARGE
[COMMISSIONER NAME] Commissioner of Labor and Industry In re an Investigation of
[COMPANY NAME]
Investigation Site
[ADDRESS] [CITY], Virginia [ZIP CODE]
COMMISSIONER JCOMMISSIONER NAME]=S INITIAL INTERROGATORIES
Pursuant to Virginia Code ' 40.1-6(4) and ' 4:8 Of the Rules of the Supreme Court of Virginia, [COMMISSIONER NAME], Commissioner of Labor and Industry, hereby requests [COMPANY/INDIVIDUAL AND ADDRESS], to serve sworn, written answers to the following interrogatories to the Commissioner at the Department of Labor and Industry, Division of Legal Services, 600 E. Main Street, Suite 207, Richmond, Virginia 23219, within thirty (30) days after service upon [COMPANY/INDIVIDUAL]. This request is directed to [COMPANY/INDIVIDUAL], its agents, employees, representatives, and attorneys, and extends by reference to any information which [COMPANY /INDIVIDUAL] may have in its files, or that was originally provided by any other party.
Page 6 of 10
--- Page 7 ---
DEFINITIONS AND INSTRUCTIONS
The
terms
Ayou,
i
‘d
refer
to
Ayour,@ and A[COMPANY/INDIVIDUAL]@
[COMPANY/INDIVIDUAL], and its agents, representatives and, unless privileged,
attorney.
The terms Aaction@ and .Acase@ refer to the investigation being conducted of
[COMPANY/INDIVIDUAL], investigation number [#H#HHHHH}, by Commissioner
[COMMISSIONER NAME]=s representatives pursuant to Va. Code ' 40.1-29 [OR
OTHER APPLICABLE CODE SECTION].
The-term “person” means any individual, partnership, firm, corporation, association, joint
venture, business, organization, entity or employee, agent, or representative thereof.
The term "document" means the original and any copy of any written, printed, typed,
photocopied, photographic, or recorded matter of any kind or character, however
produced or reproduced, in your possession or control or known by you to exist,
including, but not limited to, all drafts, contracts, diaries, calendars, desk pads,
correspondence, communications, letters, telegrams, teletypes, memoranda, notes,
studies, reports, drawings, graphs, photographs, films, microfilms, slides, books or other
publications, magnetic or electronic recordings, computer tapes or disks, sound
recordings, lists, minutes, canceled checks, bank statements, checkbooks, and entries in
books of account.
The terms Astate,@ "identify," "identity," or "identification," and "describe" or
"description"
a
When used in reference to an individual, require the specification of that
individual's full name, present or last known residential address, business or
official affiliation, job title, and business address (by street, city and state);
When used in reference to a person that is not an individual, require the
specification of the type of entity and its business address, and the identification
of all partners, otficers, directors, and stockholders;
‘
When used in reference to a document, require the specification of that
document's date, author, addressee, title, serial or file number, present location,
the identity of its custodian, the substance of the contents thereof, and any other
information necessary to the framing of an appropriate request for the production
of the document; or alternatively, shall require the production of an authentic
copy of that document; and
When used in reference to any act, occurrence, statement, occasion, meeting, oral
communication, discussion, transaction, or conduct ("act") mean to set forth the
event or events constituting such act, its location, its date, the identity of persons
participating, present, or involved, and the documents, relating or referring in any
way thereto;
and when used in reference to any discussion, conversion
pa
ee ee
~e T we,
pat ee
, oral
communication, or statement ("discussion"), mean, in addition to the foregoing, to
set forth the substance of the discussion.
Page 7 of 10
--- Page 8 ---
- The term "investigation site" refers to [SITE ADDRESS] on or about [DATE
COMPLAINT FILED].
- If any privilege is claimed as to any information called for or any document or oral
communication required to be identified by an interrogatory or produced
a. Identify the privilege involved (e.g., attorney-client, work product, etc.);
b. State the basis for claiming the privilege as to each specific item of information, document, or oral communication;
C, If the privilege is claimed with respect to any information, identify each person who has knowledge of such information, or to whom such information has been communicated at any time and in any way; and
d, If the privilege is claimed as to any document or oral communication, state the type of document or communication and the date thereof; identify each person who prepared or made it and each person (if any) who signed it; identify each person to whom the document or communication or any copy, summary, digest, or other description thereof was directed, circulated, or distributed; and identify each person now in possession of the document or such copy, summary, digest, or other description.
-
The singular of any word shall include the plural, and the plural shall include the singular.
-
The conjunctive form "and" and the disjunctive form "or" are mutually interchangeable and are meant to encompass each other.
-
"Any" and "all" are mutually interchangeable and are meant to encompass each other.
-
‘If the information requested is not available or is unknown, describe the efforts you made to obtain the information and, if known, any source from which the information might be obtained.
-
These interrogatories, requests for production of documents, and requests for admissions shall be deemed continuing so as to require supplemented responses as required by Rule 4:1(e) of the Rules of the Supreme Court of Virginia.
Page 8 of 10
--- Page 9 ---
INTERROGATORIES
- For each of these interrogatories which follow, identify the person(s) who provided the answer and identify every person consulted and every document reviewed in preparing the answer.
ANSWER
ANSWER
F Page 9 of 10
--- Page 10 ---— Respectfully submitted, [COMMISSIONER NAME}, Commissioner of Labor and Industry Department of Labor and. Industry 600 E. Main Street, Suite 207 Richmond, Virginia 23219 804.786.2377 CERTIFICATE OF SERVICE I hereby certify that on March, , 2015, a copy of Commissioner [COMMISSIONER NAME}<s Initial Interrogatories were mailed by UPS to [COMPANY/INDIVIDUAL],
[ADDRESS].
[COMMISSIONER] Commissioner of Labor and Industry
Combustible Dust Inspection GuidelinesDoc ID: National
--- Page 1 ---
VOSH PROGRAM DIRECTIVE: 14-236A ISSUED: April 1, 2008
SUBJECT: National Emphasis Program – Combustible Dust (Reissued)
A. Purpose.
This directive transmits to field personnel policies and procedures for inspecting workplaces that create
or handle combustible dusts. In some circumstances these dusts may cause a deflagration, other fires, or an explosion. These dusts include, but are not limited to:
- metal dust, such as aluminum and magnesium;
- wood dust.
- coal and other carbon dusts;
- plastic dust and additives;
- biosolids;
- other organic dust such, as sugar, flour, paper, soap, and dried blood; and
- certain textile materials.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel.
C. Reference.
OSHA Instruction CPL 03-00-008 (March 11, 2008).
D. Cancellation.
VOSH Program Directive 12-236 (December 15, 2007).
--- Page 2 ---
E. Action.
Directors and Managers shall ensure that the policies and procedures established in this Directive are followed.
F. Effective Date.
April 1, 2008.
C. Ray Davenport Commissioner
Attachment: OSHA Instruction CPL 03-00-006 (October 18, 2007).
http://www.osha.gov/OshDoc/Directive_pdf/CPL_03-00-008.pdf
Distribution: Commissioner of Labor and Industry Assistant Commissioner - Programs VOSH Directors and Managers VOSH Compliance Staff Cooperative Programs Director and Manager Legal Support Staff IMIS Support Staff
OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
--- Page 3 ---
When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
29 CFR VOSH Standard
Regional Administrator Commissioner of Labor and Industry
Area Director Region Director
Regional Solicitor Attorney General or VOSH Office of Legal Support (OLS)
Agency Department
Office of Statistics VOSH Research and Analysis
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
OSHA Directives: VOSH Program Directives
Field Inspection Reference Manual (FIRM) VOSH Field Operations Manual (FOM)
CPL 02-00-111 [CPL 2.111], Citation Policy for VOSH Program Directive 01-009A, Citation Paperwork and Written Program Requirement Policy for Paperwork and Written Program Violations (11/27/95) Requirement Violation, CPL 02-00-111
(10/15/07)
STD 01-05-019 [STD 1-7.3], 29 CFR 1910.147, VOSH Program Directive 02-211A, Control of Control of Hazardous Energy (Lockout/Tagout)-- Hazardous Energy Sources (Lockout/Tagout) Standard (9/11/90) Standard (6/15/91)
CPL 02-01-004, Inspection of Grain Handling VOSH Program Directive 02-206A, Inspection of Facilities, 29 CFR 1910.272 (11/8/96) Grain Handling Facilities, 1910.272 (11/15/98)
CPL 02-01-038, Enforcement of the Electric VOSH Program Directive 02-226A, Guidelines for Power Generation, Transmission, and Distribution Enforcement of the Electric Power Generation, Standard (6/18/03) Transmission, and Distribution Standard, 1910.269
(2/15/04)
3
Virginia Garnishment Procedures and GuidelinesDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER SEVEN GARNISHMENT
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Revised July 2009 VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Garnishment – Page 2
A. Coverage
Homestead and Other Exemptions, commonly referred to as the garnishment statutes, are contained in § 34-29 and § 34-33, Chapter 4, of the Code of Virginia. They apply to both private and public employees and also include independent agents/subcontractors (§ 34-29(d)(1)).
B. DOLI’S Responsibility
The Homestead and Other Exemptions Law requires the State Commissioner of Labor and Industry to prescribe by regulation the multiple of the federal minimum hourly wage equivalent in effect to that prescribed by § 206(a)(1) of Title 29 of the United States Code in effect at the time earnings are payable (§ 34-29(a)(2)). All other matters surrounding garnishments are to be handled by the courts. DOLI does not accept garnishment complaints.
DOLI will continue, however, to answer questions concerning garnishment. This service is still being offered, because there is no public forum, other than DOLI, that can assist employers.
C. Definitions
-
“Garnishment” means any legal or equitable procedure through which earnings of any individual are required to be withheld for the payment of any debt. Most garnishments are made by court order under which a creditor seeks to require an employer to withhold a portion of an employee’s wages. The amount withheld is required to be paid directly to the court, which then disperses it to the creditor.
-
“Disposable earnings” means that part of an employee’s earnings remaining after deductions from those earnings of any amount required by law to be withheld. The only amounts allowed to be deducted to determine disposable earnings for purposes of garnishment are the following:
(1) Federal income tax withholding deductions.
(2) Federal social security tax deductions.
(3) State and city withholding deductions.
Examples of deductions which are not allowed to be taken into account for the purpose of determining “disposable earnings” are:
(1) Deductions to purchase savings bonds.
(2) Deductions for contributions to religious, charitable, or educational organizations.
(3) Deductions for union dues and union initiation fees. Garnishment – Page 3
(4) Deductions for health and welfare premiums, including company retirement programs.
(5) Deductions for board, lodging, or other facilities furnished to an employee by the employer.
(6) Deductions for the purchase of stock in the employer’s corporation.
(7) Deductions pursuant to a voluntary assignment of wages by an employee.
(8) Deductions to repay loans or payroll advances made to the employee by the employer.
(9) Deductions for merchandise purchased from the employer.
(10) Wage assignments effected under federal or state law and executed by the courts or governmental agencies.
(11) Other levies or garnishments.
- “Earnings” means compensation paid or payable for personal services whether called wages, salary, commission, bonus, or otherwise, and includes periodic payments to a pension or retirement program. The term “earnings” is given its widest scope under § 34-29. Dollar value of meals and lodging furnished by an employer to employees is regarded as earnings for purposes of garnishment. Tips are not usually regarded as earnings, because tips do not pass through the hands of the employer. One rule that can usually be used to determine “earnings” subject to garnishment is to determine whether the item of compensation is controlled by the employer, that is to say, it passes through the employer’s hands for distribution to the employee.
The term “earnings,” however does not include the following items which are exempt under federal and state law:
(1) Social security benefits and supplemental security income (42 U.S.C. § 407).
(2) Veterans benefits (38 U.S.C. § 3101).
(3) Federal civil service retirement benefits (5 U.S.C. § 8346).
(4) Annuities to survivors of federal judges (28 U.S.C. § 376(n)).
(5) Longshoremen and Harborworkers Compensation Act (33 U.S.C. § 916).
(6) Black lung benefits.
Exemptions listed under 1 through 6 above may not be applicable in child support and alimony cases (42 U.S.C. § 659). Garnishment – Page 4
(7) Seaman’s, master’s or fisherman’s wages, except for child support or spousal support and maintenance (46 U.S.C. § 1109).
(8) Unemployment compensation benefits (§ 60.2-600, Code of Virginia). This exemption may not be applicable in child support cases (§ 60.2-608, Code of Virginia).
(9) Public assistance payments (§ 63.1-88, Code of Virginia).
(10) Homestead exemption of $5,000 in cash (§ 34-4, Code of Virginia). This exemption may not be available in certain cases, such as payment of rent or services of a laborer or mechanic (§ 34-5, Code of Virginia).
(11) Property of disabled veterans - additional $2,000 cash (§ 34-4.1, Code of Virginia).
(12) Workers’ Compensation benefits (§ 65.2-531, Code of Virginia).
(13) Growing crops (§ 8.01-489, Code of Virginia).
(14) Benefits from group life insurance policies (§ 38.2-3339, Code of Virginia).
(15) Proceeds from industrial sick benefits insurance (§ 38.2-3549, Code of Virginia).
(16) Assignments of salary and wages (§ 55-165, Code of Virginia).
(17) Benefits for victims of crime (§ 19.2-368.12, Code of Virginia).
(18) Preneed funeral trusts (§ 54.1-2823, Code of Virginia).
(19) Certain retirement benefits (§ 34-34, Code of Virginia).
-
“One indebtedness” refers to a single debt regardless of the number of levies made or proceedings brought for its collection.
-
“Subjected to garnishment” means actual withholding of the employee’s wages for a debt. Mere receipt by an employer of a garnishment order does not constitute “subjected to garnishment.” The employee is “subjected to garnishment” only when it is actually deducted from his earnings.
B. Restrictions on garnishment amounts as prescribed in subsection (a) of Section 34-29:
- The maximum part of an individual’s total disposable earnings in any workweek which are subject to garnishment may not exceed the lesser of 1) 25 percent of the disposable earnings for that week or 2) the amount by which the disposable earnings for that week exceeds 40 times the federal minimum hourly wage prescribed by the Fair Labor Standards Act in effect at the time the earnings are payable (currently this is $7.25 an hour or $290.00 per week). The Garnishment – Page 5
Commissioner of Labor and Industry prescribes the multiples in effect which would be applicable to pay periods longer than a week.
- The maximum amounts of an employee’s aggregate disposable earnings which may be garnished in a pay period for an ordinary debt are as follows:
(1) WEEKLY
Disposable earnings of $290.00 (40 x “X” (federal hourly minimum) or less: NONE may be garnished.
MAXIMUM 25%, after ensuring that the employee retains at least 40 x X (federal hourly minimum), which is currently $290.00.
(2) BI-WEEKLY
$580.00 (40 x 2 weeks x “X” (federal hourly minimum) or less
NONE
MAXIMUM 25%, after ensuring that the employee retains at least 40 x 2 weeks x X (federal hourly minimum), which is currently $580.00.
(3) SEMI-MONTHLY
$628.33 (40 x 2.16665 weeks x “X” (federal hourly minimum)) or less
NONE
AMOUNT ABOVE $628.33
MAXIMUM 25%, after ensuring that the employee retains at least 40 x 2.16665 weeks x X (federal hourly minimum), which is currently $628.33.
For purposes of this formula, a semi-month is considered 2.16665 weeks.
(4) MONTHLY
$1,256.66 (40 x 4.3333 weeks x “X” (federal hourly minimum)) or less
NONE
MAXIMUM 25%, after ensuring that the employee retains at least 40 x 4.3333 weeks x X (federal hourly minimum), which is currently $1,256.66.
For purposes of this formula, a month is considered 4.3333 weeks. Garnishment – Page 6
(5) NO SET PAY PERIOD
In the case of disposable earnings which compensate employees for personal services rendered in a pay period longer than 1 month, the weekly statutory exemption formula must be transformed to a formula applicable to such earnings providing equivalent restrictions on wage garnishment.
For example, disposable earnings for 10 weeks is represented by the following formula:
40 x 10 weeks x “X” (federal hourly minimum): NONE CAN BE GARNISHED
More than 40 x 10 weeks x “X” (federal hourly minimum): ONLY THE AMOUNT ABOVE 40 x 10 weeks x “X” (federal hourly minimum) CAN BE GARNISHED.
C. Maximum Amounts Which May Be Taken Under Child Support Orders and Other Legal Proceedings
- The restrictions in subsection B do not apply to any order for the support of any person issued by a court of competent jurisdiction or in accordance with administrative procedure, which is established by state law, which affords substantial due process, and which is subject to judicial review. The restrictions for such support orders are:
(1) Fifty percent (50%) of the employee’s disposable earnings may be taken under the support order if the employee is supporting another spouse or dependent other than the one for whom the support order is issued.
(2) Fifty-five percent (55%) of the employee’s disposable earnings may be taken if the employee is supporting another spouse or dependent other than the one for whom the support order is issued, and the employee is 12 or more weeks in the arrears.
(3) Sixty percent (60%) of the employee’s disposable earnings may be taken if the employee is not supporting another spouse or dependent other than the one for whom the support order is issued.
(4) Sixty-five percent (65%) of the employee’s disposable earnings may be taken if the employee is not supporting another spouse or dependent other than the one for whom the support order is issued, and the employee is 12 or more weeks in the arrears.
Note: The support order will indicate whether 50, 55, 60, or 65 percent of the disposable earnings should be withheld.
-
The garnishment exemptions do not apply to any order of any court of bankruptcy under Chapter XIII of the Bankruptcy Act; therefore, 100% of disposable earnings could be withheld.
-
The garnishment exemptions do not apply to any debt due for any local, state, or federal tax; therefore, 100% of the disposable earnings could be withheld.
Note: The restrictions for bankruptcy and tax debts are not provided for under § 34-29. These Garnishment – Page 7
amounts are determined by the applicable bankruptcy and tax laws. You should advise the inquirer to contact the appropriate bankruptcy court or tax department for clarification of the amount to be withheld.
D. Date wages paid or payable controlling. The date that disposable earnings are paid or payable, and not the date the Court issues the garnishment order, is controlling in determining the amount of disposable earnings that may be garnished. For example, when a withholding is made after July 24, 2009, under a garnishment order issued by a court before July 24, 2009, weekly disposable earnings in the amount of $290.00 or less would not be subject to garnishment, even though the order was issued when the restriction protected the smaller amount of $290.00.
E. Discharge for one indebtedness
Subsection (f) of § 34-29 prohibits an employer from discharging any employee because his earnings have been subjected to garnishment for any one indebtedness. However, this section does not prohibit discharge if the employee’s earnings are subjected to garnishment for a second debt. If an employee on being advised that garnishment is being considered, obtains a release from the creditor before there is an actual withholding of earnings for a second debt, the earnings have not been subjected to garnishment. The law does not expressly provide any time limitation between a first and second indebtedness. Where considerable time such as a year has elapsed between garnishments for one debt and garnishments for another debt, the first indebtedness may no longer be a material consideration in the discharge. Determination in such cases is made on the basis of all facts in the situation.
F. The term garnishment is synonymous with wage assignment, tax lien, and bankruptcy order. Regardless of the title of the legal instrument being used to direct the earnings of an individual to a creditor, in no event may the amount of an individual’s disposable earnings exceed the amounts specified in subsections B and C of this section.
G. Section 20-79.3 (8) relating to support orders states: “That the order shall have priority over any other types of liens created by state law against such earnings, except that if there is more than one court or administrative order for withholding for support against an obligor, the employer must honor the terms of the earliest received order and subsequent orders shall be honored in the order of receipt to the extent that the amounts withheld, when combined, do not exceed the maximum limits imposed under § 34-29 as specified in the order being honored.”
When there is more than one garnishment in effect, state and/or federal law require they be handled in accordance with the following priority listing:
-
Support Order (Support Order takes priority over tax lien, provided the support order is made before the date of the tax levy.)
-
Tax Lien
-
Bankruptcy Order Garnishment – Page 8
-
Ordinary Debt
H. Case Examples
-
An employee’s gross earnings in a particular week are $240.00; if, after deductions required by law, the disposable earnings are $210.00, the employee’s earnings may not be garnished in any amount because the disposable earnings in a particular week are less than $290.00.
-
An employee’s gross earnings in a particular workweek are $380.00; if, after deductions required by law, the disposable earnings are $330.00, only the amount over $290.00 may be garnished. For disposable earnings of $330.00, only $40.00 may be deducted for the garnishment in this week. The remaining $290.00 would be paid to the employee.
-
An employee’s gross earnings in a particular workweek are $500.00; after deductions required by law, his disposable earnings are $400.00. In this week, 25 percent of the disposable earnings above $290.00, or 25 percent of $110.00, may be deducted for the garnishment.
Twenty five percent of $110.00, or $27.50, may be deducted. The employee would receive $372.50.
-
A garnishment order is received on Wednesday requiring wages earned up to that day to be withheld. The employee is paid $70.00 a day. Since less than $290.00 has been earned, no garnishment is permitted. However, if another garnishment order is received when the workweek is completed, the employer should withhold on the basis of the earnings for the entire week.
-
An employee paid bi-weekly has disposable earnings of $500.00 for the first week and $200.00 for the second week of the pay period, or a total of $700.00. In a bi-weekly pay period when disposable earnings are above $580.00, 25 percent may be withheld for the garnishment. It does not matter that the disposable earnings in the second week are less than $290.00 - 25 percent of the amount above $580.00, or $120.00, is subject to garnishment.
-
An employee on a $500 weekly draw against commissions has disposable earnings each week in the amount of $400. Commissions paid monthly total $4,000 for the month after deductions required by law. Each draw and the balance due at monthly settlement are separately subject to the law’s restrictions. Thus, 25 percent of $400 or $100 may be deducted from each draw for the garnishment. At the end of the month, the $1600 previously drawn is subtracted from the $4,000 settlement figure, and 25 percent of the balance ($2,400) or $800 may be withheld for garnishment.
-
An employee who has $150 disposable earnings (gross weekly less taxes) becomes subject to garnishment issued by the court directing the employer to withhold $60 for child support. The employee is not supporting another spouse or child other than the one represented in the court order nor is there any indication in the court order that the employee is 12 or more weeks in the arrears. Since the employer may withhold up to 60 percent of the employee’s disposable earnings, the $60 may be legally withheld. However, no additional withholding may be made that week if another garnishment order resulting from an ordinary debt is subsequently Garnishment – Page 9
received.
-
An employee who has $150 weekly disposable earnings becomes subject to garnishment directing his employer to withhold $80 for alimony. The employee has remarried and is supporting another dependent other than the one represented in the court order. The court order does not indicate the employee is 12 or more weeks in the arrears in alimony payments. Since in this instance the employer can only withhold 50 percent of the employee’s disposable earnings, only $75.00 can be legally withheld.
-
An employee’s gross earnings for a week are $400. Prior to receiving a garnishment, the employer has received a wage assignment from the Department of Social Services to deduct $102 a week or 50% of disposable earnings, whichever is less, for child support. Only taxes can be deducted from gross wages to determine disposable earnings for the purposes of garnishment.
After the tax deductions, the employee has $340 disposable earnings. The $102 is deducted for the wage assignment ($102 is less than 50% of the disposable earnings figure of $340). If 25% or more of an individual’s disposable earnings are being withheld for a support debt (in this example, 30% or $102 is being withheld), no additional amount may be withheld for an ordinary debt.
-
If 45% of an individual’s disposable earnings are already being deducted for child support, and a state tax lien is received for 70% of the individual’s disposable earnings, only 55% of the disposable earnings can be applied to the tax lien. Support orders have priority over tax liens.
-
Assume an employer is withholding 25% for a garnishment on an ordinary debt. A support order is subsequently served on the employer for more than 25%. The support order has priority under Virginia law and should be honored. No additional amount can be deducted for the first garnishment.
-
Assume an employer is withholding 25% for a garnishment on an ordinary debt. The employer receives notice of the commencement of a bankruptcy case involving the employee.
The employer must stop withholding wages pursuant to the garnishment. The wages withheld prior to the bankruptcy should be submitted to the court that issued the garnishment summons, with notice to the employee, the employee’s bankruptcy attorney, the bankruptcy trustee and the judgment creditor.
- Assume an employer is withholding 25% for a garnishment on an ordinary debt. The employer then receives a second garnishment for an ordinary debt. The employer must continue to honor the first garnishment even after the return date until it is paid in full, provided that the first judgment creditor renews the first garnishment without a lapse in a pay period.
I. Fees for Garnishment Summons
-
Employers may deduct a fee of up to $10.00 from a judgment-debtor employee for each garnishment summons it processes. Garnishment – Page 10
-
Employers may deduct a fee of $5.00 each and every time a deduction is made in accordance with a child support order.
-
Employers may deduct $20.00 for each tax lien processed.
J. Exemption of Wages of Minor from Garnishment
The wages of minors shall not be liable to garnishment or otherwise liable to the payment of the debts of parents (§ 34-33).
K. Procedures
-
DOLI does not accept claims for excessive amounts being withheld for garnishment.
-
If it is determined that excessive amounts have been withheld from an employee’s wages for garnishment, the Representative should do the following:
(1) Advise the employee to ask the employer to call the Representative for instructions so that a correction can be made in the amount being deducted.
(2) If the employer will not comply, instruct the employee to file the exemption claim form that comes with a garnishment summons, with the court.
(3) If Nos. (1) and (2) do not bring the employer into compliance, advise the employee that he or she will have to seek the assistance of an attorney, because DOLI does not have the authority to proceed further.
-
The Federal Garnishment Law (Consumer Credit Protection Act) is enforced by the Wage and Hour Division of the U. S. Department of Labor. In Virginia, an exemption for state regulated garnishment has been granted; therefore, the Virginia court system enforces the limitations on the amounts that may be garnished in a pay period, but not the restrictions on discharge from employment. Any inquiries surrounding alleged discharge for one indebtedness should be referred to the closest office of the Wage and Hour Division of the U. S. Department of Labor.
-
DOLI staff will continue to provide assistance to employers, employees, and other interested parties in the areas covered by this section while enforcement is left to the courts.
Asbestos Safety Inspection ProgramDoc ID: 14-405
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VOSH PROGRAM DIRECTIVE: 14-405 ISSUED: 01 August 2012
Subject Local Emphasis Program (LEP) -- Asbestos
Purpose This Directive transmits to field personnel a Local Emphasis Program (LEP) for safety and health inspections to identify and reduce or eliminate workplace exposure to asbestos hazards during renovation and demolition activities. This Directive also renumbers this local emphasis program to the 14 series [Emphasis Programs] from the 02 series [Compliance Instructions] to conform to the program directives’ new classification and numbering system (See VOSH Program Directive
01-001A).
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This directive applies to VOSH state-wide.
References OSHA Instruction CPL 02-02-063 (30 November 1995) VOSH Field Operations Manual (FOM), VOSH PD 02-001F (01 June 2011) (or successor)
Cancellation VOSH Program Directive 02-405A (15 June 1993); and VOSH Program Directive 02-402B (March
15, 1992)
Action The Directors of VOSH Safety and all Regional Directors and Compliance Managers shall assure that procedures established in this Directive are adhered to when scheduling and conducting inspections under this local emphasis program.
Effective Date 01 August 2012
Courtney M. Malveaux Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Director and Manager Assistant Commissioner - Programs VOSH Compliance and Cooperative Programs Staffs VOSH Directors and Managers OSHA Regional III and Norfolk Area Offices Legal Support and IMIS Staffs
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I. History.
OSHA originally initiated a National Emphasis Program (NEP) beginning in October 1983 which it continued for a number of years and in which VOSH participated. Subsequently, VOSH continued enforcement of this NEP after it was ended by federal OSHA. This revised LEP is intended to continue that initiative and to supplement existing VOSH targeting programs, focusing additional resources as necessary to monitor job sites, promote voluntary compliance and promote awareness of asbestos hazards during the renovation and demolition of buildings and structures.
Licensed asbestos contractors are required by §40.1-51.20.A of the Code of Virginia to notify the Department’s Asbestos Notification and Permit Program at least twenty (20) calendar days prior to the commencement of an asbestos project; and by §40.1-51.20.B of the Code of Virginia to obtain a permit from the Department prior to commencing an asbestos project.
Similarly, under the Virginia Asbestos NESHAP Act, §40.1-51.23, Code of Virginia, owners of buildings and/or contractors are required to provide written notification to the Department at least ten (10) working days before stripping or removing regulated asbestos containing material (RACM) from a facility component and prior to the demolition of regulated structures.
The Department is required by §40.1-51.21 of the Code of Virginia to conduct an on-site unannounced inspection of each licensed asbestos contractor at least once a year.
II. Background.
Asbestos minerals have a tendency to separate into microscopic-size particles that can remain in the air and are easily inhaled. Workers exposed to these airborne asbestos in their workplaces face a significant danger of developing the disabling diseases of asbestosis, lung cancer and mesothelioma. These diseases caused by asbestos are constitute the highest level of health risk for such employees.
Although the use of asbestos and asbestos products has dramatically decreased over the last 30 years, they are still found in many commercial and residential settings and continue to pose a risk to workers. An estimated 1.3 million employees nationally, of which approximately 351,000 are in Virginia, in both construction and general industry face significant asbestos exposure on the job. Heaviest exposures occur in the construction industry, particularly, during the removal of asbestos during renovation and demolition activities.
This emphasis program is intended to supplement other existing VOSH targeting programs, focusing additional resources as necessary to monitor job sites, promote voluntary compliance and promote awareness of asbestos hazards during the renovation and demolition of buildings and structures.
III. Inspection Scheduling.
A. Asbestos Program Project Notices. The Director of Occupational Health Compliance will review notices of asbestos and demolition projects received by the Department and prepare a list of projects to be inspected. The projects on the list will be sorted by location and assigned for inspection to the appropriate Regional Office. Contractors that have not received an inspection during the current year will generally be given a higher priority than those contractors already inspected at least once in the current FFY.
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B. Complaints. Complaints and other notices of hazards involving the possible presence of asbestos during demolition and renovation activities will be inspected in accordance with procedures found in the VOSH FOM. Any appropriate means available shall be used to determine if there is any likelihood of employee exposure to asbestos as a result of the renovation or demolition activity. If the Compliance Manager judges it appropriate, an inspection shall be scheduled.
Note: Under the VOSH asbestos construction standard, thermal system insulation (pipe lagging, boiler insulation, etc.), surfacing materials (spray-on acoustical plasters, troweled on plaster coatings, etc.) and flooring materials (vinyl tile, sheet goods, etc.) are all presumed to contain asbestos in buildings built before 1981. The building owner must report these materials as asbestos unless an accredited inspector has shown them to be asbestos free.
C. Referrals. Referrals from the U.S. Environmental Protection Agency (EPA) or the Virginia Department of Environmental Quality (DEQ), the Department of Professional and Occupational Regulation (DPOR), other governmental agencies, and the general public, related to the improper handling of asbestos-containing materials during renovation and demolition operations, will be handled in the same manner as complaints.
IV. Inspection Procedures
If employee exposure to asbestos is alleged, an inspection shall be scheduled. Unsigned complaints, other government agency referrals, or any other reports, shall be evaluated and scheduled as a programmed inspections under this LEP.
D. All CSHOs shall be alert at all times for renovation or demolition activities where asbestos may be present.
B. Such activities shall be reported to the supervisor for evaluation as soon as the CSHO observes them.
C. If a CSHO is assigned to conduct an inspection where asbestos is suspected to be present, the situation should be brought to the Compliance Manager’s attention. A referral shall be made to a CSHO who has been trained to perform asbestos inspections.
D. Construction health inspections scheduled under the LEP generally shall be limited to those areas of the site where asbestos is or may be used, stored, removed, or otherwise found.
E. If, after the CSHO arrives on the site, it is discovered that none of the employers are engaged in asbestos-related activities and that no asbestos exposure is present on the premises, the inspection shall be terminated immediately and the VOSH-1 completed, accordingly, for a “No Citation Issued Inspection” (NCI).
V. Database Entry Coding. The majority of inspections conducted under this LEP will be “Health” inspections and, in such cases, should be coded as such.
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A. Planned/Targeted Inspections. LEP inspections of firms that are planned or targeted as a result of this LEP inspection type will be coded as “Programmed Planned” and then classification coded as an LEP, specifically indicating “ASBESTOS”.
B. Referral Inspections. Inspections that are conducted as a referral under this LEP will be coded as “Programmed Related” and then classification coded as an LEP, specifically indicating “ASBESTOS”.
Where “Program Related” inspections are conducted, they will be so indicated on the VOSH-1.
C. Complaint inspections. Inspections under this LEP that are conducted as a result of a complaint or fatality/catastrophe will be coded as “Unprogrammed Related” and then classification coded as an LEP, specifically indicating “ASBESTOS”.
D. Where it is discovered, upon arrival at a worksite scheduled for an inspection under this LEP, that asbestos is not being disturbed or no asbestos is found on the site, or no demolition activity is underway, the VOSH-1 shall be completed as a “No Citation Issued Inspection”.
E. If an inspection is conducted at a federal facility under the Virginia Asbestos NESHAP Act, the VOSH-1 shall still be completed as a “No Citation Issued Inspection”, and a referral shall be made to the federal OSHA Area Office in Norfolk.
The new “ASBESTOS” code applies to the following enforcement forms: VOSH-1, OSHA-7, OSHA-36, OSHA-90 and OSHA-55.
Whenever a consultation visit is made in response to this LEP, the Consultation Request form and Visit form are
to be completed with the LEP code “ASBESTOS” on Form-20 and Form-30.
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Virginia Heat-Related Hazards Enforcement ProgramDoc ID: 14-442
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DOLI Virginia Occupational Safety & Health VOSH
VOSH PROGRAM DIRECTIVE: 14-442 ISSUED: August 10, 2022
Subject National Emphasis Program on Outdoor and Indoor Heat-Related Hazards
Purpose This Instruction describes policies and procedures for implementing a National Emphasis Program (NEP) to protect employees from heat-related hazards and resulting injuries and illnesses in outdoor and indoor workplaces. This NEP expands on the agency’s ongoing heat-related illness prevention initiative and campaign by setting forth a targeted enforcement component and reiterating its compliance assistance and outreach efforts.
This approach is intended to encourage early interventions by employers to prevent illnesses and deaths among workers during high heat conditions, such as working outdoors in a local area experiencing a heat wave, as announced by the National Weather Service. Early interventions include, but are not limited to, implementing water, rest, shade, training, and acclimatization procedures for new or returning employees.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies VOSH-wide. This directive applies to all VOSH personnel.
References OSHA Instruction CPL 03-00-024 (April 8, 2022)
Cancellation None.
Effective Dates September 29, 2022
Expiration Date Not Applicable
Action VOSH Regional Directors shall ensure that policies and procedures established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
Gary G. Pan Commissioner
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Distribution: Commissioner of Labor and Industry Director of Cooperative Programs Deputy Commissioners Assistant Commissioner VOSH Compliance Staff VOSH Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH Legal Support & OIS Staff Summary
This Directive describes policies and procedures for VOSH implementation of a National Emphasis Program (NEP) to identify and eliminate or reduce worker exposures to occupational heat-related illnesses and injuries in general industry, construction, maritime, and agriculture. It targets specific industries expected to have the highest exposures to heat-related hazards and resulting illnesses and deaths.
Significant Changes
This is a new Directive.
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Table of Contents
I. Purpose. .................................................................................................................................1
II Scope. ....................................................................................................................................1 III. References. ...........................................................................................................................1 IV. Cancellations. ........................................................................................................................2
V. Action Offices. ......................................................................................................................2 A. Responsible Office. ...................................................................................................2 VI. Reserved. ...............................................................................................................................3 VII. Expiration. .............................................................................................................................3 VIII. Significant Changes. ..............................................................................................................3
IX. On-Site Consultation Programs. ..........................................................................................3
X. Background. ..........................................................................................................................3 XI. NEP Goal. .............................................................................................................................6
XII. Program Procedures. .............................................................................................................6 A. General. ......................................................................................................................... 6
B. Site Selection. ............................................................................................................... 7 C. Inspection Scheduling. .................................................................................................. 9
D. Inspection Procedures. ................................................................................................ 13 E. CSHO Protection. ....................................................................................................... 19
F. OSHA Information System (OIS) Coding Instructions. ............................................. 20 G. Outreach. ..................................................................................................................... 21
H. Coordination. .............................................................................................................. 23
I. Program Review.......................................................................................................... 23
Appendix A: Target Industries for the Heat NEP Appendix B: CSHO Pre-inspection Checklist Appendix C: Sample Heat AVD Appendix D: Sample Heat Hazard Alert Letter Appendix E: Sample Employer Letter to Corporate Offices for Heat-Related Hazards Appendix F: Description of serious illnesses and common symptoms Appendix G: Warnings, Alerts, and Advisories Issued by the U.S. National Oceanic and Atmospheric Administration (NOAA), National Weather Service (NWS)
Appendix H: Additional Resources
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I. Purpose.
This Directive describes policies and procedures for implementing a National Emphasis Program (NEP) to ensure that employees in high-hazard industries are protected from heat-related hazards, both indoors and outdoors, that may lead to serious illnesses,
injuries, or death (see Appendix F for a list of heat illnesses). This NEP augments VOSH’s efforts addressing unprogrammed-related activities, e.g., complaints, referrals, and severe incident reports, by adding an enforcement program targeting specific high hazard industries or activities in workplaces where this hazard is prevalent during high heat conditions, such as working outdoors in a local area experiencing a heat wave, as announced by the National Weather Service, or working indoors near radiant heat sources, such as iron and steel mills and foundries In addition, this NEP focuses on
vulnerable workers in outdoor and indoor environments by coordinating efforts with the Virginia Department of Health (VDH). More information on this effort is in Section XII.A, Program Procedures.
II. Scope.
This Directive applies VOSH-wide.
III. References.
A. Executive Order (EO) 14008, January 27, 2021.Executive Order (EO) 14008, Tackling the Climate Crisis at Home and Abroad. B. U.S. Department of Labor Climate Action Plan, September 2021, pgs. 6-7.
C. OSHA Memorandum, Inspection Guidance for Heat-Related Hazards, September 1, 2021.
[Note, this memorandum, which began OSHA’s enforcement Heat Initiative, is being incorporated into this OSHA Instruction, and the memorandum will be archived upon the effective date of this NEP.] D. Section 40.1-51.1.A, Code of Virginia, General Duty Requirements
E. VOSH PROGRAM DIRECTIVE: 01-001C, Program Directive Development, Classification and Numbering System for VOSH
F. VOSH PROGRAM DIRECTIVE: 01-019, State Emphasis Programs: Development, Approval, Adoption, and Evaluation
G. VOSH PROGRAM DIRECTIVE: 02-003V, VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act, OSHA Instruction CPL 02-00-051 (formerly CPL 2-0.51J);
Appendix “A” Revision
Appendix A-1
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H. VOSH PROGRAM DIRECTIVE: 09-001, Field Operations Manual (FOM) VOSH – Rev. 3.4 09-001
I. VOSH PROGRAM DIRECTIVE: 02-105A, Inspection Scheduling for Construction J. VOSH PROGRAM DIRECTIVE: 04-001E, VOSH Whistleblower Investigation Manual
K. VOSH PROGRAM DIRECTIVE: 09-104A, Recordkeeping Policies and Procedures Manual (RKM)
L. OSHA Instruction, TED 01-00-015, OSHA Technical Manual (OTM), Section III, Chapter 4 – Heat Stress, September 15, 2017 (or latest update).
M. OSHA-NIOSH Heat Safety Tool (smartphone App): Heat Safety Tool Application. N. OSHA Memorandum of Understanding, Wage and Hour Division (WHD) – Coordination and Information Sharing, August 4, 2021.
O. NIOSH, Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments, DHHS (NIOSH) Publication Number 2016-106, February 2016.
P. American Conference of Governmental Industrial Hygienists (ACGIH®), Action Limit (AL) for un-acclimatized workers and a Threshold Limit Value (TLV®) for acclimatized workers, see Heat Stress and Strain: TLV® Physical Agents 2022 (or latest edition). See ACGIH® website, here.
[Note, TLV® Booklets are available through OSHA’s Technical Data Center.] Q. U.S. Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA), National Weather Service (NWS), Types of warnings, alerts, and advisories.
See Appendix H for Additional Resources.
IV. Cancellations. None.
V. Action Offices. A. Responsible Office.
Division of Health Compliance.
B. Action Offices.
VOSH Regional and Field Offices and VOSH On-Site Consultation Program.
C. Information Offices.
Appendix A-2
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VOSH Headquarters Office.
Action. VOSH Directors and Managers must ensure that the policies and procedures set forth in this directive are followed. The Assistant Commissioner shall encourage Consultation Program’s involvement in this effort.
VI. Reserved.
VII. Expiration.
None.
VIII. Significant Changes.
None.
IX. VOSH On-Site Consultation Programs.
The VOSH On-Site Consultation Program has developed a Heat Illness Prevention Campaign for addressing heat-related illness and injuries resulting from body heat generated by physical work that is performed in conditions of high ambient and/or radiant heat, especially when combined with humidity and inadequate cooling. The VOSH On-Site Consultation Program continues its efforts to educate employers and workers on heat injury and illness prevention in outdoor and indoor work settings, and the importance of three key safety measures: “Water. Rest. Shade.” This campaign is ongoing; however, VOSH in conjunction with OSHA, amps up outreach efforts during warmer months. See coding instructions for the OIS in Section XII.F.
X. Background.
The U.S. Department of Labor’s Bureau of Labor Statistics (BLS) reports that between 2015 and 2019, environmental heat cases resulted in an average of 35 fatalities per year
and an average of 2,700 cases with days away from work. However, the total number of heat-related fatalities may be underreported and improperly diagnosed. The cause of death is often listed as a heart attack when the actual cause or aggravating cause may have been exposure to a heat-related hazard. Heat-related illnesses range from heat cramps to heat stroke, which can potentially lead to death. See Appendix F for a list of heat illnesses. Between 2015 and 2020, Federal OSHA conducted approximately 200 heat-related hazard inspections each year, which included approximately 15 heat-related fatality inspections annually.
From 1999 to October, 2021, a total of 17 heat-related employee fatalities and 5 employee hospitalizations were reported to VOSH during the period in construction, agriculture and general industry settings.
The Department conducted an informal review of Virginia Workers' Compensation
Appendix A-3
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Commission (VWCC) First Report of Injury (FRI) statistics for the period 2009 to 2020 to obtain some baseline data on heat-related illnesses and injuries in Virginia. The review was not intended to be a comprehensive assessment of all work-related heat cases, in part because the review found at times a lack of consistency in the coding of cases.
For the period 2009-2020, the Department identified 2,443 heat-related illnesses, 701 (28.71%) of which resulted in payments totaling $3,121,767.87 (average of $4,453.31).
The National Weather Service (NWS) uses a heat index to classify environmental heat into four categories: Caution (80°F – 90°F HI), Extreme Caution (91°F – 103°F HI), Danger (103°F – 124°F HI), and Extreme Danger (126°F or higher HI), issued by the U.S. Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA), National Weather Service (NWS). See NWS webpage, here. When the heat
Appendix A-4
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index1 is 80°F or higher, serious occupational heat-related illnesses and injuries become more frequent, especially in workplaces where unacclimatized workers are performing strenuous work (e.g., intense arm and back/lifting work, carrying, shoveling, manual sawing, pushing and pulling heavy loads, and walking at a fast pace), without easy access to cool water, or cool/shaded areas, when working in direct sunlight or areas where other radiant heat sources are present.
Acclimatization is a process by which a person gradually increases their exposure time to hot environmental conditions, causing beneficial physiological changes by properly
regulating body temperature that minimizes heat-related illnesses. It is therefore essential for employers to train new or returning workers on heat-related hazards including heat stress, gradually increase their workloads, ensure more frequent breaks as they acclimatize to ambient conditions, and monitor them for signs of heat illness. Heat-related fatalities have occurred with a heat index below 80°F, particularly when aggravating factors are present.
Heat-related fatalities are usually the result of exertional heat stroke, where physical activity in hot environments causes the body temperature to reach 104°F or higher (normal body temperature is around 98.6°F).1 Appendix F of this memorandum provides a list of serious heat-related illnesses, along with common signs and symptoms of exposure.
Heat-related illnesses and injuries can happen at almost any ambient temperature, especially in cases where workers perform moderate or higher physical activity, or wear heavy or bulky clothing or equipment, including personal protective equipment. Heat-
related illnesses and injuries also generally occur when body heat generated by physical work is performed in conditions of high ambient heat, especially when combined with humidity and inadequate cooling. As mentioned above, combinations of heat and humidity are used to determine the commonly used “feels like” temperature (i.e., heat index, or HI). The OSHA-NIOSH Heat Safety Tool App is a resource for finding the forecasted and current heat index. The App indicates the hazard levels using the heat index as: Caution less than 80°F HI, Warning 80°F to 94°F HI and danger at 95°F HI or higher.
The National Institute for Occupational Safety and Health (NIOSH) has published recommended occupational exposure limits and controls for heat stress. A NIOSH publication, Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments, outlines recommended environmental limits for physical work at which point engineering controls, preventative work, hygienic practices, and administrative or other control procedures should be implemented in order to reduce the risk of heat-related illnesses. NIOSH has a Recommended Alert Limit (RAL) and Recommended Exposure Limit (REL) based on the Wet-Bulb-Globe Temperature
1 According to the National Weather Service, the Heat Index, sometimes referred to as the apparent temperature, is given in degrees Fahrenheit and is a measure of how hot it really feels when relative humidity is factored in with the actual air temperature.
Appendix A-5
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(WBGT).2 For a listing of best practices on worker acclimatization visit the American Conference of
Governmental Industrial Hygienists (ACGIH®) Action Limit (AL) for unacclimatized workers and a Threshold Limit Value (TLV®) for acclimatized workers, see Heat Stress and Strain: TLV® Physical Agents 2022 Edition, or latest edition, available at www.acgih.org.
The above alerts, advisories, and criteria can help to identify days in which a maximum heat temperature can result in increased risks of heat-related hazards. These criteria vary across the country. Particularly in areas of the United States that are not usually subject to elevated dangerous heat conditions, unacclimatized workers may suffer serious heat-related illnesses even in cases when the heat index is not high enough to trigger NWS heat advisories or warnings.
XI. NEP Goal.
During the period August 1, 2014 to August 30, 2021, VOSH received 229 heat illness related unprogrammed activities (UPA) in well over 100 industries (i.e. complaints, referrals from other government agencies, employer reported hospitalizations, fatalities), including 50 hospitalizations and 4 fatalities.
The four UPA fatalities occurred in NAICS
238110 Poured Concrete Foundation and Structure Contractors 238160 Roofing Contractors 238220 Plumbing, Heating, and Air-Conditioning Contractors 321999 All Other Miscellaneous Wood Product Manufacturing
NOTE: Please note that six other heat illness related fatalities not included in the above UPA report occurred during the period August 1, 2014 to August 30, 2021 in the following industries:
237310 Highway, Street, and Bridge Construction 236220 Commercial and Institutional Building Construction 111910 Tobacco Farming 561320 Temporary Help Services [in a Manufacturing Plant]
561730 Landscaping Services 236118 Residential Remodelers
The 50 UPA hospitalizations occurred in NAICS
2 For resources discussing heat-related illnesses and common symptoms, see NIOSH Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments, DHHS (NIOSH) Publication Number 2016-106, February 2016.
Appendix A-6
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221122 Electric Power Distribution 221310 Water Supply and Irrigation Systems 236220 Commercial and Institutional Building Construction 237110 Water and Sewer Line and Related Structures Construction 238110 Poured Concrete Foundation and Structure Contractors 238140 Masonry Contractors 238160 Roofing Contractors 311111 Dog and Cat Food Manufacturing 311611 Animal (except Poultry) Slaughtering 311612 Meat Processed from Carcasses 312230 Tobacco Manufacturing
321918 Other Millwork (including Flooring) 322130 Paperboard Mills 323113 Commercial Screen Printing 326199 All Other Plastics Product Manufacturing 327390 Other Concrete Product Manufacturing 332312 Fabricated Structural Metal Manufacturing 332321 Metal Window and Door Manufacturing 335311 Power, Distribution, and Specialty Transformer Manufacturing 337110 Wood Kitchen Cabinet and Countertop Manufacturing 448120 Women's Clothing Stores 485111 Mixed Mode Transit Systems 492110 Couriers and Express Delivery Services 493110 General Warehousing and Storage 541320 Landscape Architectural Services 541330 Engineering Services 561311 Employment Placement Agencies
561730 Landscaping Services 611310 Colleges, Universities, and Professional Schools 623110 Nursing Care Facilities (Skilled Nursing Facilities) 722511 Full-Service Restaurants 812332 Industrial Launderers 921190 Other General Government Support 922160 Fire Protection 922190 Other Justice, Public Order, and Safety Activities
The goal of this NEP is to reduce or eliminate worker exposures to heat-related hazards that result in illnesses, injuries, and deaths, by targeting industries and worksites in Virginia, including worksites with radiant heat sources, where employees are exposed to heat-related hazards and have not been provided adequate protection that includes cool water, rest, cool areas, training, and acclimatization. These mitigation strategies are key in controlling the health hazards associated with heat exposures. VOSH’s goal will be accomplished by a combination of enforcement (which includes inspection targeting),
outreach to employers, and compliance assistance. Each Region is encouraged to conduct three (3) programmed inspections annually under this SEP in addition to UPA inspections conducted.
Appendix A-7
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To ensure abatement and to monitor the effectiveness of VOSH’s enforcement and guidance efforts, certain follow-up inspections from worksites previously inspected for heat-related hazards will be included as part of the program procedures, as outlined in Section XII.C.2.
XII. Program Procedures.
A. General.
To increase the likelihood of preventing heat-related illnesses and deaths and make efficient use of VOSH resources, compliance safety and health officers (CSHOs) who are investigating for other purposes, shall open or refer a heat-related inspection for any hazardous heat conditions observed, recorded in the OSHA 300 logs or 301 Incident Reports, or where an employee brings a heat-related hazard(s) to the attention of the CSHO (such as, employees or temporary
workers being exposed to high temperature conditions without adequate training, acclimatization or access to water, rest, and shade). Expansion of inspections shall be conducted in accordance with the VOSH FOM, Chapter 5 Section I.B, Expanding the Scope of an Inspection.
Additionally, CSHOs should inquire during inspections regarding the existence of any heat-related hazard prevention programs on heat priority days. A heat priority day occurs when the heat index for the day is expected to be 85°F or more. The RO will assess the potential for heat-related serious illnesses and injuries where such hazards may exist in indoor or outdoor work areas on heat priority days and provide compliance assistance where needed.
Furthermore, programmed inspections shall occur on any day that the NWS has announced a heat warning or advisory for the local area. See Appendix G for a description of these types of alerts, for which affected employers should be aware and take appropriate actions to protect their workers from heat hazards.
Appendix A has a list of both outdoor and indoor industries that are known to have heat-related hazard incidents. During days of locally-issued heat warnings or advisories, establishment lists derived from Appendix A will be used for programmed inspections, see Section XII, C.3.
Another source for heat inspections are referrals from the Virginia Department of Health (VDH) (VDH is responsible for conducting pre-occupancy inspections of migrant labor housing, as well as inspections of restaurants). When the weather is hot or a heat alert is issued for an area where the VDH is investigating, VOSH will coordinate with VDH concerning referrals on heat-related hazards.
OSHA’s Appropriations Act has placed exemptions and limitations on enforcement activities for those employers who employ 10 or fewer employees, commonly referred to as small employers. Small farming operations and small employers in low-hazard industries are most affected by the exemptions and limitations of the Appropriations Act.
Appendix A-8
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Before initiating any health enforcement activities for a farming operation or non-farm low hazard employer with 10 or fewer employers, the CSHO should review the current version of VOSH PROGRAM DIRECTIVE: 02-003, VOSH Procedures to comply with OSHA Enforcement Exemptions and Limitations under the Federal Appropriations Act, for more details.
A farming operation with 10 or fewer employees at all times during the previous 12 months and that has not had an active temporary labor camp during the preceding 12 months is generally exempt from VOSH enforcement, e.g., programmed health or safety inspections, referrals, or complaints. CSHOs should
be aware that family members of farm employers are not counted when determining the number of employees. However, with regard to heat-related inspections under this SEP, Regional Directors will normally proceed with the inspection and follow the procedures in VOSH PROGRAM DIRECTIVE: 02-003 for using 100% state funds for the inspection related activities.
A non-farming employer with 10 or fewer employees listed in Appendix A of VOSH PROGRAM DIRECTIVE: 02-003 has some enforcement exemptions and limitations under the Appropriations Act (e.g., programmed safety inspections are not permitted), but programmed health inspections are permitted. However, with regard to heat-related inspections under this SEP, Regional Directors will normally proceed with the inspection and follow the procedures in VOSH PROGRAM DIRECTIVE: 02-003 for using 100% state funds for the inspection related activities.
Please note the Appendix A of VOSH PROGRAM DIRECTIVE: 02-003 is updated yearly.
B. Site Selection.
- Scheduling/Site Selection. VOSH will request data to develop a targeting list of establishments from OSHA’s Office of Statistical Analysis (OIS) for programmed inspections. Programmed inspections must use neutral and
objective selection criteria. See coding instructions for the OSHA Information System (OIS) in Section XII.F.
Any inspection that meets the conditions for a heat inspection and any heat-related severe injury report or referral from VDH shall initiate an inspection, unless a physical inspection is not feasible. For example, the construction operation was temporary and work has ended, or the report is from an area that is difficult to reach (e.g., mountain area, gorge, swamp). The list of industries in Appendix A, Table 1 (non-construction), of this Heat NEP
can be used to create a master list of targeted establishments within the North American Industrial Classification System (NAICS). NAICS is a systematic way to classify businesses by the products or services they provide. A list of
Appendix A-9
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establishments that are in the local jurisdiction of each Regional Office will be generated by the Office of Statistical Analysis (OSA) ListGen application will be requested. The Regional Office will inspect establishments in the Random Number order as provided on the list to ensure neutrality. OSA will provide each Regional Office with an Access database that includes the establishments with the NAICS codes covered under this NEP.
Appendix A, Table 2, lists construction industries that are likely to have heat-related hazards. The Regional Office should use C-Target procedures to find active construction sites to add to their list of heat inspections for programmed inspections during days of locally issued heat warnings or advisories (see Appendix G). (Note that if a construction project from the C-Target list is inspected, the Regional Office must account for all projects from that list by either conducting an inspection or deletion in accordance with CPL 02-00-155). While travelling to work sites, CSHOs should be vigilant of circumstances where employees in the industries listed in Appendix A, Table 2, are exposed to heat-related hazards.
Appendix A, Table 3, lists non-construction industries with a history of heat-related incidents that are not in ListGen. For industries in Table 3, alternative sources may be utilized (e.g., Reference USA, a business and residential information database). The Regional Office may use local knowledge to add these industries to the inspections list.
- Additions. ROs may also add establishments to the ListGen Master List based on current activity at a construction site, or other non-construction establishments, based on local evidence that heat exposures have occurred in
the five years preceding the effective date of this Instruction for industries not included in ListGen. The local evidence may be based on OIS incident data, employer-reported heat-related illness or fatalities, regardless of NAICS, and workers’ compensation data. Other sources of local information may include but are not limited to: (a) commercial directories (e.g., Reference USA); (b) telephone listings; (c) local knowledge of establishments; (d) information from other government agencies with joint jurisdictions, such asVDH, Virginia Department of Agriculture and Consumer Services (VDACS), U.S.
Department of Agriculture (USDA), Environmental Protection Agency
(EPA), Virginia Department of Environmental Quality (DEQ), Virginia Department of Transportation (VDOT) and (e) media referrals. The RO must retain documentation of every addition made to the Master List and, prior to use, the revised List must be re-randomized either by OSA or by the RO using the RANDBETWEEN function in Microsoft Excel.
ListGen assigns random numbers and provides the establishment lists in random number order. Acceptable methods for generating cycles can be found in the memorandum dated November 12, 2014, Establishment Targeting Lists for Emphasis Programs. Subsequent cycles will be created in the same manner until such time that this NEP is cancelled or until all
Appendix A-10
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establishments on the list have been assigned to a cycle. Cycles may be created all at once or as necessary and need not be of the same size.
Deletions. ROs may delete from their target list establishments known to be out of business, documenting the basis for such determinations. Regional Offices shall generally not delete establishments with 10 or fewer employees from the establishment list.
Regional Officers may delete from their target list any establishment that does not have an exposure to heat-related hazards or that has had a comprehensive or partial health inspection that addressed heat hazards, with an Opening Conference date occurring within the twelve (12) previous months and
resulting in one of the following outcomes
a. Serious citations issued related to heat hazards which are under contest or for which the abatement period has not yet expired; or b. No serious citations were issued for hazards related to exposure to heat-related hazards; or
c. Serious citation(s) were issued for hazards related to exposure to heat-related hazards, but a follow-up inspection documented appropriate and effective efforts by the employer to abate the serious hazards cited (e.g., work practice or administrative controls in place, engineering controls installed).
Note: The RD may use discretion in scheduling a heat inspection at a previously cited establishment inspected within the previous twelve (12) months, even where related other-than-serious citations, Hazard Alert Letters, or Notification Letters were issued.
The RO shall maintain documentation supporting any deletions made under this paragraph (see below).
- Maintaining Inspection List/Cycles and Documentation: The RD is responsible for maintaining documentation necessary to demonstrate that the RO has used the NEP inspection list and cycles in accordance with this Instruction, including documenting all deletions, deferrals, or other modifications. The AO shall maintain all such inspection lists, cycles, and documentation for a period of three years following the completion of all inspections conducted under this NEP plan.
C. Inspection Scheduling.
Within a specified cycle, heat-related health inspections shall be scheduled, in accordance with the FOM, with the highest priority given to fatality inspections, and then to other unprogrammed inspections (i.e., complaints and referrals) alleging employee exposure(s) to heat-related hazards. The Regional Office (RO) may schedule follow-up inspections related to heat-related hazards to meet the
Appendix A-11
--- Page 15 ---
goals of this NEP where unprogrammed activities have decreased sufficiently to allow that.
- Scheduling. The RO must schedule inspections by establishing a cycle. A "cycle" is a subset of establishments from the Master List that allows the Area Office to use its enforcement resources more efficiently, including arranging establishments’ order within a cycle. See OSHA Memorandum, Establishment-Targeting Lists for Emphasis Programs, November 12, 2014, page 3.
The RO may schedule inspections one of the following ways
a. If the RO intends to inspect the entire Master List, they may schedule the inspections in any order. If the RO uses this method, they must account (through inspections and deletions) for the entire list. The RO cannot inspect off a new list until the entire previous list is completed. b. The RO may inspect the facilities in the random number order
provided. If the AO uses this method, it does not need to complete the entire Master List. c. The RO may create cycles by choosing a set number of establishments from the Master List, sorted in random number order. For example, it can select the first 10 establishments on the Master List, sorted by ascending random number as a first cycle of 10 establishments. The
RO can then inspect those establishments in any order but must finish the cycle prior to beginning a second cycle. Once the first cycle is complete, the RO can inspect the next ten establishments on the randomized Master List as its second cycle.
Some establishments selected for inspection under this NEP may also be selected under other NEPs and/or NEPs. Whenever possible, inspections
under this NEP should be carried out concurrently with other programmed inspections.
- Unprogrammed Inspections.
Fatalities/catastrophes, complaints, or referrals for any general industry, maritime, construction, or agriculture operation alleging hazardous exposures to heat (outdoors and/or indoors), regardless of whether they fall within a targeted industry of this NEP, shall be handled in accordance with the hierarchy of initiating inspections as outlined in FOM Chapter 2, Complaint
and Referral Processing, and Chapter 3, Program Planning, and in accordance with the specific procedures listed below:
a. Fatalities/Catastrophes.
Fatality incidents shall be prioritized for inspections.
Appendix A-12
--- Page 16 ---
b. Complaints and Referrals.
Allegations of potential worker exposures to heat (e.g., insufficient
controls in place such as access to water, rest, and/or shade), or involving workers suspected or confirmed of a heat-related illness, shall be given priority for on-site inspections.
During all unprogrammed inspections, CSHOs must document the information required in Section XII.D.
- Follow-up Inspections.
Initial follow-up inspections should be conducted for establishments that were
previously inspected as a result of a heat-related fatality and were issued citations, to determine if abatement was implemented for heat-related hazards.
Additional follow-up inspections should be conducted for any establishment receiving serious violations for heat-related hazards or in some cases, other than-serious citations.
The RD may also select establishments for follow-up inspections where any of the following applies:
a. The establishment previously received an other-than-serious recordkeeping violation related for failure to record a heat-related illness or injury, and other circumstances at RD discretion.
b. A previously inspected employer continues to expose employees to heat-related hazards, or has not fully and properly implemented required engineering controls, administrative controls, work practices, and personal protective equipment noted in the abatement certification, within the time period specified; or
c. If there are any violations for which abatement verification has not been provided.
Follow-up inspections are to be conducted in accordance with FOM, Chapter 3, Section IV. Inspection Procedures for Follow-up and Monitoring
Inspections, based on available resources and using either on-site, remote, or a combination of on-site and remote methods.
For situations where follow-up onsite inspections cannot be performed (e.g., where CSHOs are unable to conduct an on-site inspection), the RD, when possible, may require that the employer provide written updates documenting the progress of abatement efforts, per VOSH ARM, 16VAC25-60-307, Abatement Verification. If resources allow, follow-up inspections/investigations may also be initiated to verify abatement of any hazards identified in Hazard Alert Letters for heat-related hazards.
Appendix A-13
--- Page 17 ---
- Programmed Inspections. a. High-hazard Industries.
Appendix A lists high hazard industries with NAICS codes having among the highest numbers of BLS heat cases, incidence rates and BLS median days away from work for the years 2015-2020, OSHA severe injury reports, OSHA-recorded inspections, heat-related violations, and Hazard Alert Letters issued since January 2018. (See Appendix A for
more detailed information about the sources OSHA used to identify affected industries.). Appendix A, Table 1, has a list of targeted industries in ListGen to be used for programmed Heat NEP inspections during days of locally-issued heat warnings or advisories (see Appendix
G).
b. General Schedule List.
If an establishment selected for inspection under this NEP is also selected under the current General Schedule List, where possible the NEP and General Schedule plan inspections should be conducted concurrently.
- Whistleblower Protections.
Workers requesting inspections, complaining of heat-related exposure, or reporting illnesses or retaliation, may be covered under one or more whistleblower protection statutes. Inform the workers of their protections from retaliation and refer them to the VOSH Office of Whistleblower Protection, for more information, including how to file a retaliation complaint. If the worker is alleging some form of retaliation, the RO should submit a referral to the VOSH Office of Whistleblower Protection Program using the appropriate intake form and regional referral process.
- Coordination with Virginia Department of Health.
Workers complaining of inadequate working or living conditions or wages, may be protected by one or more statutes enforced by VDH. VDH and VOSH offices are encouraged to initiate referrals and exchange appropriate information relating to complaints, inspections, or investigations and related matter to support the enforcement activities of the agencies.
If VOSH discovers information relating to a possible violation of the laws and regulations enforced by VDH, VOSH offices are encouraged to provide
timely information to VDH by making a referral.
- Cooperative Programs.
Employers participating in select cooperative programs may be exempt from programmed inspections. After inspection lists are generated, the RO should contact the VOSH On-Site Consultation Officer(s) in their RO to determine if
Appendix A-14
--- Page 18 ---
any company on the list should be exempted. The CSHO should follow the procedures outlined in FOM Chapter 2, Program Planning, for further guidance if an On-Site Consultation visit is in progress, or if the establishment is a participant in VOSH’s Voluntary Protection Programs (VPP) or the Safety and Health Achievement Recognition Program (SHARP) or Pre-SHARP. Even if an employer is exempt from a programmed inspection, the RO should notify the employer in writing that they are required to comply with all applicable VOSH standards and the General Duty Clause. In such cases, the Regional Consultation Program Officer shall follow-up with the Consultation Program Manager.
D. Inspection Procedures and Case File Documentation.
Programmed inspections under a new NEP are typically initiated after a 90-day outreach period. The VOSH On-Site Consultation Program has conducted outreach in Virginia throughout the heat campaign that was first initiated in 2011.
Therefore, the 90-day outreach goal for this enforcement initiative has been achieved. Regions may perform more outreach as needed.
VOSH will include additional information in its outreach efforts on the Heat NEP through webinars and conferences at the State and regional levels. The Agency will continue to conduct outreach, per Section XII.G, throughout the NEP’s course of implementation while responding to complaints, referrals, hospitalizations, and fatalities related to heat, and shall code such activities in accordance with Section XII.F.
All inspections shall be conducted in accordance with the general provisions of
the FOM. Other procedures related to scheduling and conducting inspections include the following:
- VOSH Regional Offices shall assess the potential for heat-related illnesses, injuries, and deaths where heat-related hazards may exist in indoor work areas or at outdoor work areas on heat priority days when the heat index is expected to be 85°F or higher. CSHOs should use internal guidance material for assistance in performing heat investigations. The procedures to assess heat conditions and workload are described in the OSHA Technical Manual (OTM), Section III, Chapter 4 - Heat Stress. Inspections under this NEP shall only be conducted by CSHOs who have reviewed the appropriate safety and
health precautions as outlined in the FOM Chapter 3, Inspection Procedures.
A review of any potential heat-related hazards should be included in any programmed or unprogrammed inspection, as mentioned above.
Inspections should be completed and citations, or hazard alert letters, if any, should be issued expeditiously to facilitate prompt abatement. After any type of inspection initiated under this NEP, where evidence of a potential General Duty violation is not present, an intervention with the employer should be
Appendix A-15
--- Page 19 ---
conducted to identify and prevent potential heat-related illnesses. Heat hazard interventions are informational in nature and should include discussions with employers regarding taking proactive employee protection measures (e.g., easy access to cool water, cooling areas, and acclimatization) and providing heat posters and other outreach materials to mitigate the hazard.
Note: In cases where it is geographically infeasible to expeditiously initiate an inspection of an unprogrammed activity, the Regional Office will initiate contact with the employer using non-formal procedures to encourage speedy interventions to prevent the potential for heat-related illnesses.
2. During heat-related inspections, CSHOs shall
a. Review OSHA 300 Logs and 301 Incident Reports for any entries indicating heat-related illness(es), b. Review any records of heat-related emergency room visits and/or ambulance transport, even if hospitalizations did not occur, [this may require the use of a Medical Access Order],
c. Interview workers for symptoms of headache, dizziness, fainting, dehydration, or other conditions that may indicate heat-related illnesses, including both new employees and any employees who have recently returned to work,
d. Determine if the employer has a heat illness and injury program addressing heat exposure, and consider the following:
- Is there a written program?
- How did the employer monitor ambient temperature(s) and levels of
work exertion at the worksite?
- Was there unlimited cool water that was easily accessible to the employees?
- Did the employer require additional breaks for hydration?
- Were there scheduled rest breaks?
- Was there access to a shaded area?
- Did the employer provide time for acclimatization of new and
returning workers?
- Was a “buddy” system in place on hot days?
- Were administrative controls used (earlier start times, and employee/job rotation) to limit heat exposures?
- Did the employer provide training on heat illness signs, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration?
e. Document conditions relevant to heat-related hazards, including
- The heat index and additional weather data from that day, e.g., heat
alerts from the NWS, data from the OSHA-NIOSH Heat Safety Tool
Appendix A-16
--- Page 20 ---
App, saving a screenshot on a mobile phone or tablet. Additional information may be needed or indoor heat investigations
- Observe and document current conditions and those at the time the
Incident occurred (for unprogrammed inspections), including: o Observed wind speed, o Relative humidity,
o Dry bulb temperature at the workplace and in the shaded rest area, o Wet-bulb globe temperature at the workplace,
(ensure the equipment has been properly calibrated prior to use), o Cloud cover (no clouds, 25%, 50%, 75%, 100%), and
o The existence of any heat advisories, warnings, or alerts
the previous days. f. Identify activities relevant to heat-related hazards. These can include, but are not limited to:
- Potential sources of heat-related illnesses (e.g., working in direct sunlight, a hot vehicle, or areas with hot air, near a gas engine, furnace, boiler, or steam lines),
- The use of heavy or bulky clothing or equipment, including personal
protective equipment,
- Estimate workload exertions by observing the types of job tasks performed by employees and whether those activities can be
categorized as moderate, heavy, or very heavy work, considering both average workload and peak workload,
- Duration of exposure during which a worker is continuously or repeatedly performing moderate to strenuous activities.
- VOSH Regional Offices shall instruct CSHOs to be vigilant, during their travels to job sites, to conduct compliance assistance or self-referral inspections of outdoor work environments in plain view (e.g., construction worksites, highway and bridge work, lawn care, and maintenance workers, etc.) where employees may be performing moderate or more strenuous work during heat priority days or working in direct sunlight (or other radiant heat
sources) for extended periods of time. Observing potential heat-related hazards while travelling is particularly important for early intervention and prevention of heat-related incidents on construction sites, see Appendix A, Table 2. Where there is no heat hazard present or where the employer has an adequate heat illness prevention program, the CSHOs should provide any additional relevant information.
Appendix A-17
--- Page 21 ---
-
Once an inspection has been scheduled for an identified establishment, and prior to opening the inspection, CSHOs shall conduct a search of the employer’s citation and fatality/accident history in OSHA’s Establishment Search Page or by using the OIS to determine any prior heat-related issues.
-
The CSHO shall also determine whether the identified establishment is scheduled for any other programmed inspection (e.g., General Schedule, NEP, NEP). Whenever possible, inspections under this NEP should be carried out concurrently with other programmed inspections.
-
At the opening conference, the CSHO will verify the correct NAICS code for the establishment with the employer and determine whether work practices that may result in worker exposures to heat-related hazards are present at the facility or worksite. The CSHO shall review the establishment’s injury and illness logs (OSHA 300 and OSHA 300A) for three calendar years prior to the inspection and the current year to date to identify any work-related cases of heat illness.
Note 1: Not all industries covered by the Heat NEP are required to maintain OSHA records, and CSHOs should check to see if the industry of the establishment being inspected is in Appendix A to subpart B of Part 1904. If the establishment is exempt from maintaining OSHA records, either because of size (per 29 CFR § 1904.1) or industry classification (per § 1904.2), it cannot be cited for failing to record an injury or illness.
Note 2: CSHOs shall always verify an employer’s assertions regarding
workplace conditions or worker exposures to heat by interviewing employee(s) at the site.
- If the inspection is initiated by an unprogrammed or follow-up activity, or the establishment is targeted under another NEP, SEP or LEP, the CSHO shall proceed to determine any additional alleged items or those covered by another emphasis program. The CSHO will also inform the employer and interviewed
employees of their Whistleblower rights and responsibilities, Va. Code §40.1-51.2:1. If the unprogrammed activity that initiated this inspection included an allegation of retaliation, the CSHO shall refer this allegation to the Office of Whistleblower Protection Program.
If the CSHO determines during the walkaround or background research that workers may be performing tasks which include exposure to heat-related
hazards, then they shall proceed with the inspection following the procedures in this NEP.
- A review of any potential heat-related hazards should be included in any programmed or unprogrammed inspection where radiant heat sources exist in indoor work areas or at outdoor work areas on heat priority days. CSHOs should conduct compliance assistance and document it where heat-related hazards do no warrant issuing citations.
Appendix A-18
--- Page 22 ---
- CSHOs can use the OSHA-NIOSH Heat Safety Tool App as a resource. This App provides current and projected heat indices for that day at the current location. The App indicates the hazard levels as: Caution (less than 80°F HI), Warning (80°F – 94°F HI), Danger (95°F HI or higher), and offers recommended actions to protect workers. When conditions for previous days are needed, the NWS provides certified historic weather data to document past conditions on. CSHOs should use nationally available tools assembled on the
CSHO Resources intranet webpage to reconstruct data when appropriate on a particular day. 10. WBGT readings will be determined in accordance with procedures on conducting WBGT sampling and performing workplace assessments, OSHA Technical Manual (OTM), Section III, Chapter 4. WBGT sampling is
considered a more accurate indicator of the effects of heat on individuals than dry bulb thermometer readings. Dry bulb thermometer readings measure air temperature only. As noted above, CSHOs should also conduct workload assessments through direct observation of work practices/operations and employee interviews. They should particularly note if heavy or bulky clothing or equipment is used.
-
If inspections occur on days different from the incident triggering the complaint, referral, SIR, or fatality, CSHOs should obtain historic WBGT logs/records, if available. If records are not available, the OTM provides a method for calculating WBGT values using historic weather data available on the internet.
-
Report heat-related inspections to the VOSH Health Compliance Director as soon as possible. Regional Offices should contact the VOSH Health Compliance Director early in the inspection (especially in fatality or hospitalization cases) to obtain Medical Access Orders, if needed. For technical assistance, contact the Health Response Team and/or the Cincinnati Technical Center on the use of WBGT instrumentation. Contact DEP’s Office of Health Enforcement, for assistance with enforcement policy.
-
During any inspection, where other health or safety hazards have been alleged in a complaint or observed in plain view during the walkaround, CSHOs shall
investigate as appropriate. Safety or health referrals may be made, subject to any current exemptions or limitations on such activity. 14. The CSHO will inform workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to VOSH during an inspection, such as filing a safety and health complaint with VOSH, reporting a work-related injury or illness, or complaining about exposure to
heat-related hazards or any other workplace hazards to management. Any complaint of alleged retaliation shall be promptly referred to the Office of Whistleblower Protection Program.
Appendix A-19
--- Page 23 ---
- Citation Guidance: CSHOs shall consult this Instruction and its references, and any internal guidance on heat enforcement available, and guidelines in evaluating whether there is sufficient evidence to issue a General Duty Clause (GDC), Va. Code §40.1-51.1.A) citation for heat-related hazards. Any proposed citation for a heat-related health hazard for both indoor and outdoor work activities shall be issued under the GDC when all elements of a violation have been established. CSHOs should document the relationship between the
workplace operations and exposure(s) and the potential for heat-related illness(es), specifically focusing on all ambient conditions and activities that present heat-related hazards. a. Ensure that the hazard is clearly and specifically set forth in the citation.
Avoid solely describing an employer’s failure to implement specific heat
illness abatement measures as the hazard. The Division of Legal Support shall be consulted for assistance when developing these cases prior to issuing any heat-related general duty citations. A sample Alleged Violation Description (AVD) for a heat-related illness general duty violation is located in Appendix C. A Hazard Alert Letter (HAL) may be sent when all the elements of a GDC violation have not been established.
A sample HAL is located in Appendix D, and a corresponding letter template is in the OIS.
b. Several VOSH standards may also be applicable to address worker protection in hot environments including, but not limited to, use of
personal protective equipment, sanitation, medical services and first aid, and recordkeeping.
- The Recordkeeping regulation at § 1904.7(b)(5) requires that employers record certain work-related injuries and illnesses. If a
worker requires medical treatment beyond first aid, the worker’s illness or injury must be recorded, such as unconsciousness or use of oxygen. However, if a worker merely requires first aid treatment for the worker’s condition, the employer is not required to record the condition. For example, if a worker becomes unconscious, the worker’s condition must be recorded. However, if a worker is only instructed to drink fluids for relief of heat stress, the worker’s condition is not recordable. Refer to § 1904.7(b)(5) for an explanation of the difference between medical treatment and first aid.
Recordkeeping issues must be handled in accordance with VOSH
PROGRAM DIRECTIVE: 09-104A.
Note: Not all industries covered by the Heat SEP are required to maintain OSHA records, and CSHOs should check to see if the industry of the establishment being inspected is on Appendix A to subpart B of Part 1904. If the establishment is exempt from maintaining OSHA records, either because of size (per 29 CFR § 1904.1) or industry classification (per § 1904.2), it cannot be cited
Appendix A-20
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for failing to record an injury or illness.
- The Sanitation standards at § 1910.141, 1915.88, 29 § 1917.127, 29 §
- 95, § 1926.51, and § 1928.110 require employers to provide cool potable water.
- The general construction safety training and education standards for construction at § 1926.21 and § 1926.20, requiring a Safety and Health Program, as well as frequent and regular safety and health
inspections may also be applicable.
Note: Issuance of citations or HALs should be expedited so that proposed abatement measures may be implemented earlier to protect employees exposed to heat hazards.
In all cases where the RD determines that a worksite condition exists warranting issuance of a General Duty citation for occupational exposure to the heat-related hazards, the Regional Office shall follow current guidance in this SEP. Heat cases proposing a General Duty citation are novel cases and must be submitted to the VOSH Health Compliance Director and the Division of Legal Support (DLS) following novel case procedures, until otherwise instructed.
- Establishments with more than one location engaged in the same or similar types of operations, may also have employees who are potentially exposed to
heat-related hazards at other work sites. Compliance Officers should consult with the RD to provide a letter to the corporate entities of such establishments, informing them of any heat-related VOSH inspection(s), including sending relevant information on protective measures. Refer to Appendix E of this Instruction for a sample letter to employers.
E. CSHO Protection. 1. When performing an on-site inspection, CSHOs must observe all appropriate precautions to protect themselves from heat-related illnesses. CSHOs should ensure that they have protected themselves from the dangers of heat exposure prior to performing any enforcement actions in the field in accordance with
the job hazard analysis for that worksite, and immediately stop the inspection if they or an employee has symptoms of heat illness. Additional safety precautions will be needed if the CSHO believes other hazards may exist in the workplace. Appendix B of this Instruction provides a CSHO pre-inspection checklist.
- CSHOs shall also protect themselves against other hazards during an
inspection and must use additional personal protective equipment as necessary to protect themselves from hazards (e.g., gloves, goggles).
Additional CSHO precautionary guidance and inspection tools are provided in Appendix B of this Instruction. See FOM Chapter 4, Section II.E, Safety and Health Issues Relating to CSHOs.
Appendix A-21
--- Page 25 ---
F. OSHA Information System (OIS) Coding Instructions.
All enforcement activities (i.e., inspections, complaints, and referrals, etc.) and consultation requests/visits conducted under this NEP shall be coded with the
new code, “HEATNEP.” The existing heat codes, “N-02-HeatGI, N-02-HeatCON, N02-HeatMI, N-02-HeatAG,” are also required in the Additional Code field. However, new for this NEP is that technical assistance activities related to heat should be captured on the compliance assistance Form 55 using the N-02 heat codes, above, by industry, which is being added to the Form 55 in the OIS.
These codes must be applied even if the establishment was not among the targeted NAICS listed in Appendix A, as long as heat-related hazardous conditions were investigated. VOSH and Consultation Program compliance assistance activities related to heat illness prevention should also continue to be coded with the topic “Heat Illness Prevention.” Programmed heat inspections will be conducted when the NWS has announced a heat warning or advisory for the local area and shall be coded as Heat NEP inspections in the OIS.
Unprogrammed heat inspections should also be coded as a Heat NEP inspection in the OIS.
Additionally, inspections conducted under this NEP are to be coded under Inspection Category as a “Health” inspection unless the inspection was initiated
as an unprogrammed safety inspection where no heat-related hazards were initially alleged but were later found during the course of the inspection. In such a case, the inspection should be coded under Inspection Category as a “Safety” inspection.
CSHOs should identify any heat violations or HALs using the General Duty Keyword in the violation screen. CSHOs should enter “Heat” in the general duty keyword section. The Heat keyword is in addition to the other required heat coding for violations, such as Related Event Codes as applicable.
Table 1, below, provides a summary of all heat related OIS codes.
Table 1. List of OIS codes for heat-related inspections and activities
OIS Field OIS Codes Activity Type All enforcement and consultation activities conducted under this NEP NEP HEATNEP (e.g., complaints, fatalities, referrals, inspections, visits).
Additional N-02-HEATGI, N- These existing codes will continue to Code 02HEATCON, N- be used to track industry groups for 02HEATMI, N- all enforcement activities, and now 02HEATAG also for compliance assistance.
Appendix A-22
[TABLE 25-1] OIS Field | OIS Codes | Activity Type NEP | HEATNEP | All enforcement and consultation activities conducted under this NEP (e.g., complaints, fatalities, referrals, inspections, visits).
Additional Code | N-02-HEATGI, N-
02HEATCON, N-
02HEATMI, N-02HEATAG | These existing codes will continue to be used to track industry groups for all enforcement activities, and now also for compliance assistance.
[/TABLE]
--- Page 26 ---
General Duty Heat All heat-related violations and HALs Keyword Existing topic for all heat-related Compliance compliance assistance activities will Assistance Heat Illness Prevention continue to be used. In addition, for Activity Topic task type “technical assistance” add additional codes as directed above.
G. Outreach.
- Offices.
As discussed above, at the beginning of Section XII.D, each Regional Office shall continue conducting outreach programs concerning heat illnesses, including as it pertains to new guidance and this NEP. The VOSH On-Site Consultation Program shall continue to conduct statewide outreach on heat illness prevention upon issuance of this NEP.
- Suggested Local Outreach.
Outreach activities may include the following
a. Sharing information on the Heat NEP and available compliance assistance tools and resources, including no-cost On-Site Consultation services available to small businesses. This information may be distributed in
written form (e.g., via letter or email), or conveyed in webinars or presentations at conferences and other events to employers, employee groups, and unions in heat hazard industries such as, but not limited to those in Appendix A. b. Enhancing collaborations with other state and federal agencies with similar outreach goals, such as the VDH, USDA, EPA, DEQ and VDACS
to conduct outreach on the Heat NEP and heat illness prevention.
c. Collaborating with agency stakeholders, including VOSH cooperative program participants, to share information on the NEP and best practices or effective means of reducing or eliminating worker exposure to heat-
related hazards. d. Building new stakeholder relationships with organizations that can help disseminate information to workers and employers in heat hazard industries.
e. Working with On-Site Consultation Programs, local Small Business Development Centers (SBDCs), and other organizations to reach small businesses in heat hazard industries.
Appendix A-23
[TABLE 26-1] General Duty Keyword | Heat | All heat-related violations and HALs Compliance Assistance Activity Topic | Heat Illness Prevention | Existing topic for all heat-related compliance assistance activities will continue to be used. In addition, for task type “technical assistance” add additional codes as directed above.
[/TABLE]
--- Page 27 ---
f. Sharing information on the rights of workers and responsibilities of employers, including whistleblower protections and anti-retaliation principles. The Recommended Practices for Anti-Retaliation Programs can be used as a resource and outreach tool, see Appendix D.
Targeted Audiences for Outreach.
-
Local employers in high-hazard industries. See also targeted industries in Appendix A.
-
Unions, worker centers, COSH groups (Councils for Occupational Safety and Health), and other organizations committed to advancing protections for underserved worker populations.
-
Local companies and employer associations (e.g., trade associations, contractor groups, farm bureaus, local chambers of commerce) in industries such as, but not limited those in Appendix A.
-
Insurance companies.
-
Local professional associations (e.g., local safety councils, local agriculture extensions).
-
Temporary employment agencies providing employees to targeted employers.
- Local newspapers, TV stations, and trade magazines (these can help
inform the public and hard-to-reach employers).
- Local government (e.g., health departments, departments of correction, emergency services, construction permitting agencies, and
departments of transportation).
- Local suppliers of materials or services, equipment transportation companies, such as landscapers, and delivery services.
Online Materials.
VOSHA online resources may be of assistance in this outreach effort. A variety of these information sources can be accessed through OSHA’s public webpage, including OSHA’s webpage for the Heat Illness Prevention Campaign, Safety and Health Topics webpage on Heat
Exposure, and the DOLI Heat Stress Illness And Prevention web page.
Internal resources for heat are also available on the OSHA intranet.
H. Coordination. 1. Headquarters’ Office.
This NEP will be coordinated by the Division of Health Compliance (DHC). All questions and comments regarding this NEP should be directed to DHC. For inspection support, Regional and Field Offices may
Appendix A-24
--- Page 28 ---
also coordinate, as needed, with OSHA’s Directorate of Technical Support and Emergency Management’s (DTSEM), Office of Occupational Medicine and Nursing (OOMN), the OSA, the Cincinnati Technical Center, the Salt Lake Technical Center’s Health Response Team, and other offices. For questions about outreach support and resources, contact the Division of Cooperative Programs.
- Regional Office.
The Regional Director will work with the Health Compliance Director in implementing this NEP.
I. Program Review.
To assess the effectiveness of this NEP, the Health Compliance Director will review the NEP within 12 months of issuance to determine whether the policy contained herein will be continued, and take steps to assure its replacement with a cleared Instruction, if needed, as soon as possible. The program review reports shall, at a minimum, address the NEP goal (see Section XI), in accordance with established Agency procedures. Data on effectiveness may include:
-
The number of employers covered by the inspections.
-
The number of workers removed from hazards.
-
Abatement measures implemented.
-
Number of violations related to specific targeted hazards.
-
Any indices that relate directly to measures that may be included in the VOSH Strategic Plan.
-
Total number of prosecutable, heat-related violations of VOSH standards (including final citations resulting from the settlement or litigation of contested cases).
Appendix A-25
--- Page 29 ---
Appendix A: Target Industries for the Heat NEP
Programmed inspections under this NEP may be scheduled on any day that the NWS has announced a heat warning or advisory for the local area (see Appendix G for a description of these types of alerts). This appendix includes three tables of industries (NAICS codes at the 4-digit level) with the following: 1) High numbers or high incidence rates of heat related illnesses from the Bureau of Labor Statistics (BLS) data; 2) Elevated number of days away from work (BLS) or high numbers of severe cases of heat-related illnesses, as indicated by death or hospitalization, from OSHA severe injury reports made by employers; or 3) the highest number of OSHA heat-related general duty clause 5(a)(1) violations and HALs over a 5 year period (1/1/2017 thru 12/31/2021), or the highest number of OSHA heat inspections since 2017. Table 1 lists non-construction industries in ListGen, Table 2 lists construction industries, and Table 3 lists non-construction industries not found in ListGen.
Note: It should not be assumed that employee exposure to heat occurs in all establishments within the industries listed in the tables below. The RO may delete from their target list any establishment that does not have an exposure to heat-related hazards or an establishment that
has had a comprehensive or partial health inspection that addressed heat hazards with an Opening Conference date occurring within the twelve (12) previous months, see Section XII B2 Site Selection Deletions.
Table 1. Non-construction industries that are in ListGen and are likely to have heat-related hazards.
2017 4-Digit NAICS Code 2017 NAICS Industry Sector Title 1121 Cattle Ranching and Farming
1151 Support Activities for Crop Production 2131 Support Activities for Mining 3118 Bakeries and Tortilla Manufacturing 3211 Sawmills and Wood Preservation 3241 Petroleum and Coal Products Manufacturing 3251 Basic Chemical Manufacturing 3272 Glass and Glass Product Manufacturing
3311 Iron and Steel Mills and Ferroalloy Manufacturing 3314 Nonferrous Metal (except Aluminum) Production and Processing 3315 Foundries 3323 Architectural and Structural Metals Manufacturing 3329 Other Fabricated Metal Product Manufacturing 3361 Motor Vehicle Manufacturing 3362 Motor Vehicle Body and Trailer Manufacturing
3363 Motor Vehicle Parts Manufacturing 3364 Aerospace Product and Parts Manufacturing 3365 Railroad Rolling Stock Manufacturing
Appendix A-26
--- Page 30 ---
3366 Ship and Boat Building 3369 Other Transportation Equipment Manufacturing 3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing 4239 Miscellaneous Durable Goods Merchant Wholesalers 4241 Paper and Paper Product Merchant Wholesalers 4242 Drugs and Druggists’ Sundries Merchant Wholesalers
4243 Apparel, Piece Goods, and Notions Merchant Wholesalers 4244 Grocery and Related Product Merchant Wholesalers 4245 Farm Product Raw Material Merchant Wholesalers 4246 Chemical and Allied Products Merchant Wholesalers 4247 Petroleum and Petroleum Products Merchant Wholesalers 4248 Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers 4249 Miscellaneous Nondurable Goods Merchant Wholesalers
4413 Automotive Parts, Accessories, and Tire Stores 4442 Lawn and Garden Equipment and Supplies Stores 4881 Support Activities for Air Transportation 4882 Support Activities for Rail Transportation 4883 Support Activities for Water Transportation 4884 Support Activities for Road Transportation 4889 Other Support Activities for Transportation 4921 Couriers and Express Delivery Services
4922 Local Messengers and Local Delivery 4931 Warehousing and Storage 5311 Lessors of Real Estate Services to Buildings and Dwellings (includes landscaping services, tree 5617 removal and tree trimming services) 5621 Waste Collection
5622 Waste Treatment and Disposal 5629 Remediation and Other Waste Management Services 6231 Nursing Care Facilities (Skilled Nursing Facilities) 7211 Traveler Accommodation 8111 Automotive Repair and Maintenance
8113 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance
The RO should use C-Target to find active construction sites to add to their programmed inspection list on any day that the NWS has issued a heat warning or advisory for the local area. (Note that if a project from the C-Target list is inspected, the RO must account for all projects from that list by either inspection or deletion in accordance with VOSH PROGRAM
DIRECTIVE: 02-105A, Inspection Scheduling for Construction). Where VOSH is conducting an inspection for other purposes, a heat-related inspection shall be opened for all hazardous conditions observed in plain view (such as employees or temporary workers in high exposure
Appendix A-27
--- Page 31 ---
areas without adequate training, acclimatization or access to water, rest, and shade).
Table 2. Construction industries that are likely to have heat-related hazards.3
2017 4-Digit NAICS Code 2017 NAICS Industry Sector Title 2361 Residential Building Construction 2362 Nonresidential Building Construction 2371 Utility System Construction
2372 Land Subdivision 2373 Highway, Street, and Bridge Construction 2379 Other Heavy and Civil Engineering Construction 2381 Foundation, Structure, and Building Exterior Contractors 2382 Building Equipment Contractors 2383 Building Finishing Contractors 2389 Other Specialty Trade Contractors
For certain industries not included in ListGen alternative sources may be utilized (e.g.
ReferenceUSA). The RO should use local knowledge to add these industries in Table 3 to the inspections list.
Table 3. Industries not included in ListGen or Construction that are likely to have heat-related hazards.
2017 4-Digit
NAICS Code 2017 NAICS Industry Sector Title 1112 Vegetable and Melon Farming 1113 Fruit and Tree Nut Farming 2213 Water, Sewage and Other Systems (may be State or local jurisdiction) 4411 Automobile Dealers 4412 Other Motor Vehicle Dealers
4821 Rail Transportation (may be Federal jurisdiction) 4885 Freight Transportation Arrangement 4911 Postal Service 5611 Office Administrative Services 5612 Facilities Support Services 5613 * Employment Services
5614 Business Support Services
3 Construction inspections (C-Target) should be scheduled from a list of construction worksites rather than construction employers, due to the mobility of the construction industry, the transitory nature of construction worksites, and work that frequently involves more than one construction employer on the site.
Appendix A-28
--- Page 32 ---
5616 Investigation and Security Services 5619 Other Support Services 6117 Educational Support Services
7225 Restaurants and Other Eating Places 8112 Electronic and Precision Equipment Repair and Maintenance National Security and International Affairs (includes Customs and Border 9281 Patrol, and Transportation Security Administration)
- Note: Establishments within the Temporary Help Services (NAICS 5613) industry should not be automatically included in the targeting list for programmed inspections. Although this industry has been among the top industries with OSHA enforcement activities related to heat, this has primarily occurred where services occurred at a high-hazard host. Therefore, to effectively address heat-illness hazards for Temporary Help Services, where OSHA is conducting an inspection for other purposes, a heat-related inspection shall be opened for all hazardous conditions observed in plain view (such as, for example, temporary employees working in high exposure areas without adequate training, acclimatization or access to cool water, rest, and shade).
Sources for injury and illness data
A. Bureau of Labor Statistics (BLS) Fatality cases 2015-2019 due to exposure to heat B. BLS days away from work cases, incidence rates, and median days away from work 20152019 due to exposure to heat
C. OSHA severe injury reports fatalities and hospitalizations 2018-2020. Hospitalization reports include all employer-reported referrals with Event Title “Exposure to Environmental Heat.” Fatality reports include all fatality investigations with victim type “Fatality-OSHA Covered” and any of the following public page keywords: Heat Stroke, Heat Exhaustion, Heat-Related Illness, High Temperature, Overheated, Heat. D. OSHA inspections 2018-Aug 2021, inspections with additional codes, HEATGI, HEATCON, HEATMI, HEATAG, or HOTDAYS E. OSHA Hazard Alert Letters and 5a1 violation, 2018-Aug 2021, violations with type “Heat” General Duty Clause keyword.
Appendix A-29
--- Page 33 ---
Appendix B: CSHO Pre-Inspection Checklist
Below follows some protective measures for CSHOs to consider prior to any heat-related
inspection
a. Ensure the availability and use of all necessary and appropriate personal protective equipment (PPE). b. Ensure all PPE, calibrated inspection equipment, and supplies are retrievable and ready
for use. c. Review any relevant cleaning procedures for equipment and the vehicle, government (GOV) or personal (POV).
d. For all heat inspections, the manager/supervisor/CSHO, in consultation with designated regional office staff, will develop and document a risk assessment that includes an exposure control plan, Job-Hazard Analysis, and PPE hazard assessment prior to entry and update it as necessary for each inspection, to include individual inspection risks that may not otherwise be captured in a general or overall worksite assessment. Individual inspection risks may be based on factors such as industry type, on-site hazard location,
and acclimatization. e. Ensure GOV or POV is road-ready to include gas/fuel, first aid kit, hand sanitizer, disinfecting wipes, or other cleaning and/or disinfecting agents (as required), and bags to dispose of contaminated PPE and used disinfecting wipes.
f. Ensure there is enough cool water available to drink, while performing an inspection on a heat priority day and in accordance with the JHA in d. above; (NIOSH recommends a cup of water every 15 minutes). Ensure the air conditioning in the GOV or POV is adequate to provide a cool place to rest during inspections on heat priority days. ADs are to provide addition items as needed (such as cooler, umbrella).
g. Develop a document request letter in advance of the opening conference (e.g., programs, OSHA Form 300/300A, and summaries) to be provided to the employer during the opening conference, if needed.
Appendix B-1
--- Page 34 ---
Appendix C: Sample Heat-related AVD
The General Duty alleged violation description (Alleged Violation Description (AVD) language for heat-related hazard violations of § 40.1-51.1.A. must specify the heat-related hazard with particularity, such as listing all sources of heat (e.g., environmental temperature measurements and information on any heat-generating equipment), all specific workplace conditions, activities or practices that expose employees to a likelihood of heat-related illnesses including related work exertions (e.g., performing moderate to very heavy roofing work, dumping heavy refuse bins while running behind a sanitation truck, wearing impermeable protective clothing, and
unacclimatized), as applicable. The alleged heat-related hazard descriptions should not include the employer’s failure to implement any specific abatement measures, such as acclimatizing workers to the heat; failure to provide cool drinking water, a cool shaded area, or air conditioning; or training workers on heat stress.
Example AVD
On or about and at times prior to [the date of the incident], employees were exposed to the hazard of high ambient heat from [list sources of and conditions of ambient heat, such as direct sun, boiler, steam, furnace, combustion engine] during the performance of their job duties, including [describe specific task(s) and duration of exposure]. [List the high temperatures or heat indexes for the days at issue, relative humidity, WGBT measurements and calculations, and any aggravating factors such as heavy or bulky clothing, direct sunlight, and level of workload activities. Include any NOAA heat advisory or alert that supports a high ambient hazardous heat conditions and WBGT if known]. Such exposures are likely to lead to the development of serious heat-related illnesses such as, but not limited to, heat cramps, heat stress, heat exhaustion, and heat stroke. [Describe heat-related incidents/illnesses or signs and symptoms that occurred].
The inspection case file should document any NWS local heat alerts, the reading on the OSHANIOSH Heat Safety Tool App (use the camera screenshot function to save the image of the reading), WBGT temperature if available, wind speed and /direction, radiant heat, cloud cover, length of time the work was performed, and other sources of heat in the workplace.
Additionally, document if any of the exposed employees were temporary workers, new hires, or employees returning from prolonged leave periods who were not acclimatized to the heat environment. See Section XII.D for more details.
When listing availability of feasible abatement methods, document all potential measures that would have materially reduced or eliminated the hazard of heat-related illness, such as providing cool water, frequent rest breaks, cooling or cool shaded areas, gradually acclimatizing workers to heat, and access to first aid/prompt medical attention.
Any water or other fluids provided by the employer should be cool and provided in a location that is familiar to the employees, readily accessible to the work, easy to access, and in sufficient quantity for the duration of the work.
Appendix C-1
--- Page 35 ---
Appendix D: Sample Heat-related Hazard Alert Letter
SAMPLE HAZARD ALERT LETTER Note: This letter must be adapted to the specific circumstances noted in each inspection. The letter below is an example of the type of letter that may be appropriate in some circumstances. If the employer has implemented, or is in the process of implementing, efforts to address hazardous heat conditions, those efforts should be recognized as appropriate. CSHOs should tailor the recommended controls outlined below to the specific needs of the employer. Italicized and bracketed text are for OSHA compliance use only and should not be included in the letter.
Please also check all links to ensure they are the most current.
RE: VOSH Inspection No. [ ]
Dear Employer
An inspection of your workplace and evaluation of your OSHA recordkeeping logs at [location] on [date] disclosed the following workplace condition(s) which have been associated with the development of heat-related illnesses in workers:
[Describe the work performed for each task or job, including the type of PPE worn, the source of
heat, WBGT and duration of the heat exposure, reading on the OSHA-NIOSH Heat Safety Tool App during the inspection, any heat notifications from the National Weather Service, and any other information relevant to workers' exposure to the risk of heat-related illness].
In the interest of workplace safety and health, I recommend that you voluntarily take the necessary steps to materially reduce or eliminate your workers' exposure to the conditions listed above, including, but not limited to, the following:
General Controls: General controls include training, personal protective equipment (PPE), engineering, work practice, and administrative controls, health screening, and heat alert programs, (see also NIOSH Criteria Document, Criteria for a Recommended Standard: Occupational Exposure to Heat and
Hot Environments, February 2016, page 7), available at: www.cdc.gov/niosh/docs/2016-106.
- Training: inform workers of the following (Modify this list as appropriate for the specific situation): a. Hazards of heat-related illnesses. b. How to avoid heat-related illnesses by recognizing and avoiding situations that can lead to heat-related illnesses. c. Recognition of signs and symptoms of heat-related illnesses. d. First aid procedures.
e. Employer's program to address heat-related illnesses.
Appendix D-1
--- Page 36 ---
- Personal Protective Clothing and Equipment: (CSHOs should recommend the appropriate
PPE). a. Hats for work outdoors in the sun.
b. For indoor work, loosely worn reflective clothing designed to deflect radiant heat, such as vests, aprons, or jackets. c. Cooling vests and water-cooled/dampened garments may be effective under high temperature and low humidity conditions. However, be aware that cooling vests can become an insulator when they reach the body's temperature. d. In environments where respirator usage is necessary, consult with an industrial hygienist to determine the appropriate clothing to prevent heat stress while still protecting the workers.
e. Consider the use of dermal patches for monitoring core temperature to better identify when workers need to be removed from the work area. f. Consider the use of heart rate monitoring to better identify when workers need to be removed from the work area. Both sustained (180 bpm minus age) and recovery (120 bpm after a peak work effort) heart rates are recommended guidelines for limiting heat strain.
- Engineering Practice Controls: (CSHOs should consult the OSHA Technical Manual, Section III Chapter 4, for additional information). a. Use air conditioning
b. Increase general ventilation c. Provide cooling fans d. Run local exhaust ventilation where heat is produced (e.g., laundry vents) e. Use reflective shields to block radiant heat f. Insulate hot surfaces (e.g., furnace walls) g. Stop leaking steam h. Provide shade for outdoor work sites.
-
Administrative and Work Practice Controls: (CSHOs should consult the OSHA Technical Manual, Section III Chapter 4, for additional information). a. Schedule hot jobs for cooler parts of the workday; schedule routine maintenance and repair work during cooler seasons of the year when possible. b. Provide adequate, cool drinking water on the worksite that is easily accessible and permit employees to take frequent rest and water breaks. c. Use relief workers and reduce physical demands of the job. d. Use work/rest schedules.
-
Health Screening and Acclimatization: a. Allow new workers to get used to hot working environments by using a staggered approach over 7-14 days. For example, new workers should begin work with 20% of the normal workload and time spent in the hot environment, and then gradually increase the time over a 7–14-day period. The same should be done for workers returning from an
Appendix D-2
--- Page 37 ---
absence of three or more days, starting with 50% of the normal workload and time spent in the hot environment, then staging acclimatization over three consecutive days.
Advise workers that certain medications can increase risk of heat stress. These include:
- Amphetamines – sometimes prescribed for narcolepsy or attention deficit hyperactivity disorder (ADHD),
-
Diuretics - water pills,
-
Antihypertensive - blood pressure medication,
- Anticholinergics - for treatment of chronic obstructive pulmonary disease (COPD), and
- Antihistamines - allergy medications b. In addition, alert workers to the dangers of using illegal drugs and alcohol in hot work environments. Illegal amphetamines, such as methamphetamine, are particularly hazardous when heat stress is present. c. Some conditions, such as pregnancy, fever, gastrointestinal illness, heart disease, and obesity, may increase the risk of heat-related illness. Advise workers to check with their
doctors if they have any questions. (Please note: the employer is NOT entitled to know whether workers have these conditions, but only whether workers have any health conditions that limit their ability to perform their job duties. In some instances, workers with chronic conditions may need extra time to become acclimatized or may need other accommodations, such as more frequent breaks or restricted work.) d. Encourage workers to consult a doctor or pharmacist if they have questions about whether they are at increased risk for heat-related illness because of health conditions they have and/or medications they take.
You may voluntarily provide this Regional Office with progress reports on your efforts to
address these heat-related conditions in your workplace. VOSH may return to your worksite to further examine the conditions noted above.
Sincerely,
[RD name] Regional Director
Additional Resources
- OSHA-NIOSH InfoSheet: Protecting Workers from Heat Illness, www.osha.gov/sites/default/files/publications/osha-niosh-heat-illness-infosheet.pdf.
-
CDC Workplace Safety and Health Topics: Heat Stress, www.cdc.gov/niosh/topics/heatstress.
-
NIOSH Criteria Document: Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments, February 2016, www.cdc.gov/niosh/docs/2016-106/.
Appendix D-3
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-
American Conference of Governmental Industrial Hygienists (ACGIH®) Action Limit (AL) for un-acclimatized workers and a Threshold Limit Value (TLV®) for acclimatized workers, see Heat Stress and Strain: TLV® Physical Agents 2022 or latest edition. See ACGIH® website at www.acgih.org/.
-
NOAA/NWS Heat Safety webpage, www.weather.gov/safety/heat.
Appendix D-4
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Appendix E: Sample Employer Letter to Corporate Offices for Heat-related Hazards
Bracketed comments are for VOSH compliance use only and should be removed when appropriately completed with the case-specific information. Please also check all links to ensure they are the most current.
RE: VOSH Inspection No. [ ]
Dear Employer
On [Date], the Virginia Occupational Safety and Health (VOSH) Program conducted an inspection and evaluation of your worksite at [Location] for hazards related to potential exposure to heat-related hazards.
During the inspection, VOSH determined that hazards were found in violation of the VOSH standards, resulting in [a violation of § 40.1-51.1.A. or a Hazard Alert Letter] to [Company]. A
copy of the [citations and/or letter] is attached.
Based on the guidelines listed below, it is recommended that employers take the necessary precautions to materially reduce employees' exposure to heat-related hazards.
Because you have other establishments that could present similar hazards, the VOSH Program is recommending that you conduct a hazard assessment for potential hazards in your other establishment(s). To ensure that heat-related hazards are promptly identified and addressed at your other locations, please facilitate immediate corrective action where needed. VOSH recommends that you also institute additional heat-illness measures and review the safety and health practices of your worksites to ensure consistency with VOSH recommendations and compliance with applicable VOSH standards, including:
The Recordkeeping regulation at § 1904.7(b)(5) requires that employers record certain
work-related injuries and illnesses. If a worker requires medical treatment beyond first aid, the worker's illness or injury must be recorded. However, if a worker merely requires first aid treatment for the worker's condition, the employer is not required to record the condition.
For example, if a worker becomes unconscious, the worker's condition must be recorded.
However, if a worker is only instructed to drink fluids for relief of heat stress, the worker's condition is not recordable. Refer to § 1904.7(b)(5) for an explanation of the difference between medical treatment and first aid. Recordkeeping issues must be handled in accordance with the VOSH Recordkeeping Policies and Procedures Manual (RKM) available at:
https://www.townhall.virginia.gov/L/GetFile.cfm?File=C:\TownHall\docroot\GuidanceDocs\ 181\GDoc_DOLI_5523_v3.pdf
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The Sanitation standards at § 1910.141, § 1915.88, § 1917.127, § 1918.95, 29 CFR §1926.51, and § 1928.110 require employers to provide potable water.
The general construction safety training and education standard for construction at § 1926.21 and § 1926.20 requiring a Safety and Health Program, as well as frequent and regular safety and health inspections.
Section 40.1-51.1.A, Code of Virginia, General Duty Requirements
OSHA’s website, www.osha.gov, offers a wide range of safety and health-related guidance in response to the needs of both employers and employees.
- OSHA’s Heat Illness Prevention Campaign, www.osha.gov/heat
- OSHA Safety and Health Topics: Heat, www.osha.gov/heat-exposure
We strongly urge you to share this letter with all worksites within your corporation, as well as with representatives of any recognized employee union or safety committee that may exist at your facilities.
Please note that Va. Code §40.1-51.2:1 states that no persons shall discharge or in any way
discriminate against an employee because the employee has filed a safety or health complaint or has testified or has otherwise acted to exercise his/her rights under the safety and health provisions under this Title for themselves or others. Adverse action taken against an employee who has filed a complaint or has engaged in an occupational safety and health activity protected by the Labor Laws of Virginia can result in a VOSH onsite inspection. .
If you have questions regarding this issue, you may contact me at the address in the letterhead. I appreciate your personal support and interest in the safety and health of your employees.
Sincerely,
[RD name] Regional Director
Additional Resources
-
OSHA-NIOSH InfoSheet: Protecting Workers from Heat Illness, www.osha.gov/sites/default/files/publications/osha-niosh-heat-illness-infosheet.pdf.
-
CDC Workplace Safety and Health Topics: Heat Stress, www.cdc.gov/niosh/topics/heatstress.
- NIOSH Criteria Document: Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments, February 2016, www.cdc.gov/niosh/docs/2016106/.
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-
American Conference of Governmental Industrial Hygienists (ACGIH®) Action Limit (AL) for un-acclimatized workers and a Threshold Limit Value (TLV®) for acclimatized workers, see Heat Stress and Strain: TLV® Physical Agents 2022, or latest edition. See ACGIH® website at www.acgih.org/.
-
NOAA/NWS Heat Safety webpage, www.weather.gov/safety/heat.
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Appendix F: Description of Serious Heat-related Illnesses and Common Symptoms
The table below describes serious heat-related illnesses and common signs and symptoms. Please note that this list is not exhaustive.
Heat-Related Illnesses* Symptoms and Signs
Heat stroke • Confusion
- Slurred speech
- Unconsciousness
- Seizures
-
Heavy sweating or hot, dry skin
-
Very high body temperature
- Rapid heart rate Heat exhaustion • Fatigue
- Irritability
-
Thirst
-
Nausea or vomiting
- Dizziness or lightheadedness
- Heavy sweating
- Elevated body temperature or fast heart rate
Heat cramps • Muscle spasms or pain • Usually in legs, arms, or trunk
Heat syncope • Fainting
- Dizziness Heat rash • Clusters of red bumps on skin
- Often appears on neck, upper chest, and
skin folds Rhabdomyolysis (muscle breakdown) • Muscle pain
- Dark urine or reduced urine output
- Weakness
Acute kidney injury (AKI) • Kidneys become damaged due to inadequate blood flow or a second mechanism is rhabdomyolysis of kidney muscle tissue.
- Diagnosed by elevated blood creatinine levels. Urine output is also reduced.
-
May lead to kidney failure.
-
Heat-related injury means an injury linked to heat exposure that is not considered one of the typical symptoms of heat-related illness (with the exception of kidney injury), such as a fall or cut.
[TABLE 42-1] Heat-Related Illnesses* | Symptoms and Signs Heat stroke | • Confusion
- Slurred speech
- Unconsciousness
- Seizures
- Heavy sweating or hot, dry skin
- Very high body temperature
- Rapid heart rate Heat exhaustion | • Fatigue
- Irritability
- Thirst
- Nausea or vomiting
- Dizziness or lightheadedness
- Heavy sweating
- Elevated body temperature or fast heart rate Heat cramps | • Muscle spasms or pain • Usually in legs, arms, or trunk Heat syncope | • Fainting
- Dizziness Heat rash | • Clusters of red bumps on skin
- Often appears on neck, upper chest, and skin folds Rhabdomyolysis (muscle breakdown) | • Muscle pain
- Dark urine or reduced urine output
- Weakness Acute kidney injury (AKI) | • Kidneys become damaged due to inadequate blood flow or a second mechanism is rhabdomyolysis of kidney muscle tissue.
- Diagnosed by elevated blood creatinine levels. Urine output is also reduced.
- May lead to kidney failure.
[/TABLE]
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Appendix G: Warnings, Alerts, and Advisories Issued by the National Weather
Service
The following types of warnings, alerts, and advisories may be issued by the U.S. National Oceanic and Atmospheric Administration (NOAA), National Weather Service (NWS) (see NWS webpage, here):
-
Heat Advisory—Take Action! A Heat Advisory is issued within 12 hours of the onset of extremely dangerous heat conditions. The general rule of thumb for this Advisory is that the maximum heat index temperature is expected to be 100°F or higher for at least 2 days, and nighttime air temperatures will not drop below 75°F.
-
Heat Wave—Take Action! A heat wave is forecast by NWS or a local news station. A heat wave is when the daily maximum temperature exceeds 95°F or when the daily maximum temperature exceeds 90°F and is 9°F or more above the maximum reached on the preceding days.
-
Excessive Heat Warning—Take Action! An Excessive Heat Warning is issued within 12 hours of the onset of extremely dangerous heat conditions. The general rule of thumb for this Warning is that the maximum heat index temperature is expected to be 105°F or higher for at least 2 days and nighttime air temperatures will not drop below 75°F.
-
Excessive Heat Watches—Be Prepared! Heat watches are issued when conditions are favorable for an excessive heat event in the next 24 to 72 hours. A Watch is used when the risk of a heat wave has increased but its occurrence and timing is still uncertain.
- Excessive Heat Outlooks—Be Prepared! Outlooks are issued when the potential exists for an excessive heat event in the next 3-7 days. An Outlook provides information to those who need
considerable lead-time to prepare for the event.
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Appendix H: Additional Resources
- White House Fact Sheet - interagency effort and commitment to workplace safety, climate resilience, and environmental justice, September 20, 2021.
- Federal Register, 86 FR 59309, 29 CFR § 1910, 1915, 1917, 1918, 1926, and 1928, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings; Advance notice of proposed rulemaking (ANPRM), October 27, 2021.
State Plans with Heat Standards
- California, Heat Illness Prevention webpage, here.
-
Minnesota, MNOSHA Compliance: Heat Stress webpage, here.
-
Washington, State Department of Labor & Industries: Be Heat Smart webpage, here.
Outreach
- OSHA Memorandum, Procedures for Local and Regional Emphasis Programs, December 3, 2014.
-
OSHA Publication 3905, Whistleblower: Recommended Practices for Anti-Retaliation Program, 2017.
-
OSHA Webpage, Heat Illness Prevention Campaign.
-
OSHA Webpage, Safety and Health Topic Page: Heat (all webpages also available in Spanish). 10. OSHA Poster, Prevent Heat Illness at Work (English), (Spanish).
-
OSHA Webpage, COVID-19 Guidance: The Use of Cloth Face Coverings while Working Outdoors in Hot and Humid Conditions, September 2020. 12. OSHA Publications: Heat Illness Prevention Fact Sheets, Wallet Cards, etc. (several also available in Spanish).
-
OSHA-NIOSH Info Sheet, OSHA 3438 – 2011, Protecting Workers from Heat Illness. 14. CDC, COVID-19 and Cooling Centers.
-
CDC, What Workers Need to Know about Heat Stress Prevention during the COVID-19 Pandemic.
-
U.S. Environmental Protection Agency, Climate Change and Social Vulnerability in the United States: A Focus on Six Impacts, EPA 430-R-21-003, September 2021.
Logging and Sawmill Industry Safety ProgramDoc ID: 14-215
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VOSH PROGRAM DIRECTIVE: 14-215 ISSUED: 1 July 2011
SUBJECT: Logging and Sawmill Industries - Local Emphasis Program (LEP)
Purpose. This Directive re-establishes a specific Local Emphasis Program for the Logging (pulpwood and timber) and sawmill Industries with policies and procedures for the purpose of conducting inspections of logging industry activities and sawmills within VOSH’s jurisdiction.
The intent is to achieve a reduction in the severity and number of injuries and fatalities of the loggers, sawyers and other hardwood and flooring mill employees occurring in these occupations.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope. This Directive applies VOSH-wide, and specifically to Occupational Safety Compliance and Consultation Services personnel.
References. OSHA Instruction CPL 02-07-01B (Region VII) (1 Oct. 2010) OSHA Instruction CPL 04 (2010-2011) (Region III) (1 Oct. 2010) OSHA Instruction CPL 04-00-008 (Region X) (12 July 2006) OSHA Instruction CPL 04-00-006 (Region X) (06 July 2006)
Cancellation. VOSH Program Directives: 14-222B (1 March 2005)
Effective Date. 1 July 2011
Action. Directors and Managers shall ensure that the policies and procedures established in this Directive are adhered to when scheduling and conducting inspections under this LEP.
Courtney M. Malveaux Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Director & Manager Assistant Commissioner - Programs VOSH Compliance & Cooperative Programs Staff VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH Legal Support & IT Staff
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TABLE OF CONTENTS
I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Initial Activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. NAICS Codes Covered by the LEP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Outreach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Employer Safety and Health Program Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. Inspection list
D. Master Inspection List. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Information Sources.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Site Selection
C. Federal Exemption of NAICS Codes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Ten or Fewer Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Coverage of Other Employers at Site.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
V. Inspection Activity
A. Inspection Cycles.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Scheduled Inspection Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Non-scheduled Inspection Procedures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VI. Database Entry Coding
D. Planned/Targeted Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Referral Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. Complaint Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VII. Evaluation D. Statistical Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. New Procedures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Comments/Recommendations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Appendix “A” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Appendix “B” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Appendix “C”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Appendix “D”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
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I. Background.
Employees involved in logging and sawmill industry work are exposed to safety and amputation hazards which often lead to serious physical harm and death. VOSH first initiated a statewide Local Emphasis Program for logging in 1991 in response to the occurrence of eight fatalities and an illness and injury rate of 12.8 in the logging industry (NAICS 113310) during the previous calendar year.
VOSH has maintained some form of logging, sawmill, tree trimming and/or forest products industry LEP annually since that time. From FY 2000 through FY 2010, 170 inspections were conducted under the various prior versions of this LEP with an average of 3.5 violations per inspection.
VOSH has conducted 20 fatality inspections in the logging and sawmill industries from 2000 through 2010.
The percent of violations for both industries that was cited as “serious” violations was 72%. During that time period, 71% of the inspections which resulted in the issuance of a citation involved a serious, willful, and/or repeat violation.
The causal factors for the deaths continue to be related to the most frequently cited standards, including but not limited to logging operations, sawmill operations, machine guarding, saws and lockout/tagout, indicating that a sustained enforcement effort is needed to change work attitudes and habits. The current general industry scheduling procedures do not give the logging or sawmill industries the attention which they require.
In 2009, according to the U.S. Department of Labor, Bureau of Labor Statistics, logging had the highest non-maritime (i.e., fishing industry) fatality rate in the nation at 61.8 per 100,000. Due to the unique and potentially life-threatening hazards presented by this industry, this revised and more specific local emphasis program (LEP) is being re-instituted for logging and sawmill employers. The LEP was developed to assist small and large logging contractors and sawmill employers in the development and implementation of their safety and health programs, training and hazard auditing processes.
This LEP, in conjunction with the new unique VOSH tree trimming standard (see VOSH PD 12-255) and its related tree-trimming LEP (see VOSH PD 14-234), will more precisely target VOSH inspection activity given the serious nature and recurring high rates of hazards inherent in these activities. This Directive re-institutes such a narrowly focused LEP.
II. Initial Activities.
A. NAICS Codes Covered By the LEP.
113310 Logging 321113 Sawmills
321911 Wood Window & Door Mfg 321912 Cut Stock, Resawing Lumber & Planing 321918 Other Millwork (incl. flooring) 321920 Wood Container & Pallet Mfg.
321999 All Other Misc. Wood Product Mfg. 337215 Showcase, Partition, Shelving, & Locker Mfg
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B. Outreach.
Prior to the initiation of inspection activity under this LEP, VOSH will mail informational material to all employers on the master inspection list for logging and sawmills. The information shall include a letter explaining the purpose of the program and materials relevant to the industry. The information package will continue to be made available upon request to employers, professional associations, and labor organizations. As an additional resource for achieving compliance employers will be encouraged to utilize the VOSH 21(d) Consultation Program.
VOSH will provide the following assistance to logging and sawmill employers
-
Provide a package of material that focuses directly on safety and health in the logging and/or sawmill industry, including how to establish a comprehensive safety and health program. The material will provide guidance and simplify the process for the smaller employer.
-
Refer employers to resources that will provide training in safety and health programs. This training will be accomplished in conjunction with industry stakeholders and the VOSH 21(d) Consultation Program.
- Encourage the logging and sawmill companies to contact and use the following training resources and offer resources for employers to contact for assistance on how to use OSHA’s Wood Products eTools:
- Logging eTool: http://www.osha.gov/SLTC/etools/logging/index.html
-
Sawmills eTool: http://www.osha.gov/SLTC/etools/sawmills/index.html
-
Woodworking eTool: http://www.osha.gov/SLTC/etools/woodworking/index.html
C. Employer Safety and Health Program Development.
Prior to any inspection cycle development, all employers covered by this LEP shall be encouraged to take a pro-active approach towards safety and health on the job to reduce the number of injuries and fatalities. This can be accomplished by the development and implementation of a comprehensive safety and health program and training for employees in logging operations and sawmills to:
-
Conduct complete and comprehensive safety and health audits of their logging and/or sawmill operations and activities and maintain written documentation of all findings.
-
Focus on and immediately correct the hazards and deficiencies found during the audit.
-
Ensure that the following situations, occurrences or practices are minimized or eliminated within their logging operations: setback trees; setting trees back as a logging method; working near standing dead trees; stubs; widow makers; lodged trees; and spring poles (See Appendix “C” for Glossary of Logging Terms).
-
Use proper felling techniques (See Logging eTool, User Guide, Lesson 4. Tree Falling at www.osha.gov/SLTC/eTools) to provide no bypass notching, properly placed back cuts, adequate hinge wood, and a retreat path (See Appendix “C”).
-
Address first aid/CPR training.
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- Maintain adequate separation of logging operations (maintain audible/visual distances and communication).
7. Ensure that the following are maintained during machine operation
- Safe distances
- Operator cab enclosures / seat belt
- Set parking brakes
- Ground movable elements when dismounted
- Safe operations on slopes
- Machine maintenance procedures to include lockout/tagout.
-
Identify and abate machine guarding and amputation hazards including but not limited to struck-by, caught-in and rotating parts
-
Develop and implement a comprehensive safety and health program and training for employees in logging operations and sawmills.
III. Inspection List The procedures listed below shall be used when developing the targeted inspection list of all employers under this LEP:
A. Master Inspection List.
Each VOSH regional office, with the assistance of the Central Office as needed, shall generate a master establishment list comprised of all known employers involved in logging and sawmill operations within its jurisdiction.
B. Information Sources.
This establishment list shall be generated from multiple neutral information sources that may be available, such as: the HARRIS Selectory Database, local knowledge, past inspection reports, local media reports, past accident reports, information from trade journals, Virginia Department of Environmental Quality, Virginia Workers’ Compensation Commission, Virginia Manufacturer’s Association, and the internet site (www.Smartpages.com with the keywords “Sawmills” and “Logging” within the State of Virginia).
IV. Site Selection
C. Federal Exemption and Limitations of NAICS Codes.
Each Region shall check to determine if any of the NAICS codes covered by this LEP: 113310, 321113, 321911, 321912, 321918, 321920, 321999, and 337215, are included on the current list of codes on the Enforcement Exemptions and Limitations under the latest Federal Appropriations Act memorandum as described in VOSH Program Directive 02-003K (or its successor), which restricts VOSH’s ability to inspect employers in certain industries which have 10 or fewer employees. If so, establishments in such affected codes shall be deleted from the inspection list being developed.
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B. Ten or Fewer Employees.
Establishments employing ten or fewer employees are being included in the targeting by this LEP since many logging sites and sawmills in Virginia may employ ten or fewer employees.
C. Coverage of Other Employers at Site.
All establishments classified under NAICS 113310 (i.e., logging camps and logging contractors), will be considered eligible for programmed safety and health inspections under the LEP.
Additional employers working at a selected logging work site will also be eligible for inspection if they have engaged in logging operation activity as described in Appendix “A”, or if their employees have been exposed to hazards related to those activities.
V. Inspection Activity.
The VOSH Safety Director in consultation with the Regional Director/Compliance Manager of each Region shall determine, as part of the program plan, the number and schedule of logging inspections that will be conducted during the federal (VOSH) fiscal year in each region.
A. Inspection Cycles.
-
Cycle Size. The Program Director and the Compliance Manager shall determine the number of annual inspections to be carried out annually beginning on 01 October of each year. The number of establishments in the cycle should reflect that minimum number plus an additional percentage to cover any “no inspections” that is necessary to meet that goal. Should the annual cycle be completed prior to the 30 September end of federal fiscal year (FFY), a second cycle, if desired, sufficient to cover the remainder of the FFY may be developed, as above, from the remaining master inspection list.
-
Randomization. Once the master establishment list has been created, the inspection cycle for the year must be developed. The Random Sample Function of Microsoft Access, a relational database program, or other similar randomizing program may be used to develop a randomized master inspection list from the original master list of all establishments. The list of random numbers and associated procedure from federal OSHA in Appendix “D” may also be used. (Whichever method used shall be documented).
-
Inspection Order. Establishments within the annual cycle may be inspected in any order that makes efficient use of resources; however all establishments within a cycle must be inspected prior to initiating a new cycle for the subsequent year. Carry-overs will be allowed, as per the procedure for the general inspection schedule. Unprogrammed inspections, i.e., complaints, fatalities, catastrophes, etc., will be made in accordance with procedures in the VOSH FOM.
Those work sites that receive an unprogrammed inspection shall be removed from the LEP inspection list for that year.
- Additions to the Inspection Schedule. In the process of conducting inspections under this LEP, a CSHO may observe or randomly encounter a logging or sawmill site that is not on the current inspection cycle. The Compliance Manager shall emphasize to the CSHO that such a site shall be evaluated for possible immediate inspection or addition to the master inspection list for the LEP once the CSHO becomes aware of it. In no case shall the CSHO search or otherwise specifically seek to locate a particular employer or worksite not on the inspection list.
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a. No Previous Comprehensive Inspection. Upon checking with the Compliance Manager, if it is determined that a comprehensive safety and health inspection of the site has not occurred in the previous 24 months, the site will be added to the current inspection cycle and an inspection will be conducted.
b. Previous Comprehensive Inspection. Upon checking with the Compliance Manager, if it is determined that a comprehensive safety and health inspection of the site has occurred in the previous 24 months, no inspection will be conducted at that time. Upon return to the office, the establishment and location will be added to the initial master list of all establishments for the next year or the subsequent year, depending on the date of the most recent inspection.
- Deletions to the Inspection Schedule. Companies on the current inspection cycle that have had a comprehensive safety and health inspection within the past 24 months will be removed from this inspection cycle.
B. Scheduled Inspection Procedures.
The following guidelines apply to scheduling inspections under this LEP
-
All establishments in the inspection cycle shall be inspected, unless deleted from the list pursuant to the VOSH FOM.
-
All safety and health inspections scheduled at logging and sawmill sites shall normally be comprehensive in scope unless the site was inspected in the previous two years. If the site received a comprehensive inspection in the previous two years, only unprogrammed inspections shall be conducted.
-
Opening and closing dates are the same date when no inspection is conducted.
-
Establishments selected for inspection may be scheduled in any order that makes efficient use of available resources.
-
Noise exposure and hearing conservation shall be addressed during all comprehensive inspections.
-
If the inspection site has multiple employers, a comprehensive safety and health inspection will be conducted for all employers present.
-
Unprogrammed inspections related to fatalities/catastrophes, complaints or referrals will be conducted in accordance with the VOSH FOM.
-
When an inspection is not conducted because the employer has refused entry or consent has not otherwise been obtained, a warrant shall be sought in accordance with the current VOSH FOM procedures for handling such cases. As is the case for other inspections, if the violations are in plain view, a warrant may not be necessary. In such situations, the Compliance Manager shall notify the Program Manager and contact the Division of Legal Support for guidance.
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C. Non-Scheduled Inspection Procedures.
In addition to the programmed planned inspections, all compliance personnel, in the course of their routine travel to or from work, or on the job, other than for this LEP, shall be on the lookout for logging and sawmill activities. In no case, however, shall a CSHO specifically cruise, troll, search, or otherwise travel about for the specific purpose of discovering either worksites or a particular employer with activities related to this LEP.
- Regardless of whether a violation is observed, whenever a CSHO sights or receives any other notice of a logging or sawmill operation, including other government referrals and reports from members of the public, the CSHO shall:
a. Make note of the state and condition of the work operation insofar as it is known, including any apparent serious hazards.
b. Note the name and address or location of the worksite and the owner, operator or contractor (where applicable) performing the operation, if known. 2. All related work activities shall be inspected. The CSHO shall immediately notify the Compliance Manager that an inspection has been opened pursuant to this LEP.
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Complaints and other referrals involving logging or sawmill operations where violative activities are occurring shall be scheduled as unprogrammed inspections under this LEP conducted in accordance with procedures found in the VOSH FOM. Such notices, therefore, need not be responded to with the usual letter to the employer.
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Sightings of such activities will normally be those which occur during the course of routine travel during duty or non-duty hours. As such, the discovery of these work activities may be the result of travel to other unrelated activities, such as a regular General Industry or Construction Industry programmed inspection, or responding to a complaint follow-up. Verification of information received from sources other than CSHO observation, as indicated in this Directive, is also permitted under this LEP.
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Documentation of the events leading up to the observation or the reporting of applicable activities shall be maintained by the Regional Office in case of denial of entry.
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When an inspection is not conducted because of denial of entry, a warrant shall be sought in accordance with the current procedures for handling such cases as is detailed in Section V.B.8., above.
- The scope of such non-scheduled inspections conducted under this LEP shall normally be limited to the specific logging or sawmill. If the inspection is to be expanded, the procedures given in the VOSH FOM shall be followed.
V. Database Entry Coding.
A. Planned/Targeted Inspections. LEP Inspections of firms that are planned or targeted as a result of this LEP, inspection type will be coded as “Programmed Planned” and then classification coded as a LEP specifically indicating either “LOGGING” or “SAWMILLS” (whichever is most appropriate).
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B. Referral Inspections. Inspections that are conducted as a referral and inspected during the current inspection cycle under this LEP will be coded as “Programmed Related” and then classification coded as an LEP specifically indicating either “LOGGING” or “SAWMILLS” (whichever is most appropriate). Where "Program Related" inspections are conducted, they will be so indicated on the VOSH-1.
C. Complaint Inspections. Inspections under this LEP that are conducted as a result of a complaint or fatality/catastrophe will be coded as “Unprogrammed Related” and then classification coded as an LEP specifically indicating either as “LOGGING” or “SAWMILLS” (whichever is most appropriate).
VI. Evaluation.
An annual evaluation of the program, either on a fiscal or calendar year basis, will be made to assess its efficiency and effectiveness in carrying out its specified mandate during the previous year. Such evaluation will incorporate:
D. Statistical Information. Basic statistical information consisting of number of inspections conducted, number and types of violations issued, geographic distribution of establishments, company size, incident rate, number of no-inspections, number of contests and number of denials of entries.
B. Problems. Any special problems which may have surfaced and any new solutions.
C. New Procedures. Any procedures developed by a regional office which may be helpful to other regions. D. Comments / Recommendations. Any other issues, comments or ideas regarding the LEP and recommendations for its change, continuance or elimination.
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Appendix A
Typical Logging Operations
The Following Are Typical Logging Operations
I. Pre-logging Operations * Logging road construction * Layout of logging operations * Equipment selection
II. Felling and Bucking Operations
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Brush clearing * Tree cutting * Snag felling operations * Bucking at felling site * Bucking and limbing at the landing * Miscellaneous bucking activities III. Chain Saw Operations
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Transporting chain saws to cutting areas * Fueling operations * Saw operations in the woods and at the landing IV. Log Transportation - in Forest
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Skidder operations (both rubber-tired and tracked vehicles) * Skylines operations * Cable yarding * Cable rigging * Choker setting operations * Log haulage * Other cable yarding methods * Use of cranes and other log manipulation machines * Helicopter V. Log Loading * Manual loading * Grapple loading * Fork loading * Log Scaling and marking * Log sorting * Truck Loading operations
VI. Miscellaneous/Related Operations * Fuel storage * Fire prevention
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APPENDIX B
SAMPLE LETTER TO EMPLOYER
(Date of letter) (Employer Name and Address)
Dear Employer,
On (insert effective date), the VOSH Enforcement Program will begin the implementation of a revised specific Local Emphasis Program (LEP) to reduce workplace safety and health hazards associated with logging, sawmill, and sawmill related operations. All operational establishments within the Commonwealth of Virginia and under VOSH jurisdiction will be affected.
By many measures, logging is the most dangerous occupation in the United States. The tools and equipment used in logging, such as chain saws and logging machines, pose hazards to employees wherever they are used. As loggers use their tools and equipment, they are dealing with massive weights and irresistible momentum of falling, rolling, and sliding trees and logs.
The hazards are even more acute when dangerous environmental conditions are factored in, such as uneven, unstable, or rough terrain; inclement weather including rain, snow, lightning, winds, and extreme cold.
Also, remote and isolated work sites where health care facilities are not immediately accessible present additional hazards.
Working in a sawmill can be just as dangerous in many respects. The equipment poses numerous hazards.
Massive weights and falling, rolling, and/or sliding logs can be very dangerous. The woodworking operations of a sawmill can also be hazardous to employees, particularly when machines are used improperly or without proper guarding. Employees working in sawmills have traditionally suffered from the following types of injuries and/or illnesses: amputations, lacerations, blindness, electric shock, hearing loss, and exposure to hardwood dust causing dermal and respiratory diseases. Manufacturers who have operations involving the sawing of wood or wood products may encounter similar employee hazards.
It is VOSH’s desire that employers engaged in these activities take the necessary steps to ensure that adequate safeguards are provided to protect employees. Enclosed with this letter is a CD that contains interactive eTools for the logging and sawmill industries.
Industry-wide practices are examined and the applicable OSHA standards are explained. Both eTools will provide you and your employees with expert assistance in identifying and abating hazards. Another excellent way for employers with 250 or fewer employees to address safety and health in their workplace is to ask for assistance from VOSH Consultation Services which is operated separately from VOSH’s enforcement program. Designed for small employers, the Consultation Program can help you identify hazards in your workplace and find effective and economical solutions for eliminating or controlling them. These consultants can even assist you in developing and implementing a safety and health management system for your workplace. You can reach the VOSH Consultation Program by calling 804.786.8707.
The enforcement activities associated with this LEP will commence approximately 30 days from the date of this letter. We look forward to working with you in implementing this important program. Please contact our regional office at (office phone number) if you have any questions.
Sincerely,
(Name) Regional Director
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Appendix C
Glossary of Logging Terms
A - FRAME: A structure made of two independent columns fastened together at the top and separated by a reasonable width at the bottom to stabilize the unit from tipping sideways.
AN OPERATION: Any place where logging or log related activities are taking place.
APPROVED: Approved by the appropriate authority or testing laboratory.
ARCH: An open-framed trailer or built-up framework used to suspend the leading ends of trees or logs when they are skidded.
AUTHORIZED PERSON: A person approved or assigned by the employer to perform a specifictype of duty(s) or to be at a specific location a at ta a certain time(s).
AXE: A part of the faller's safety equipment which serves many pounding and chopping functions. Can also be used to plumb the lean of a tree and gauge the height of the tree.
BACKCUT (Felling Cut): The last of the three cuts required to fall a tree. Located on the opposite side of the tree from the face and minimally 1" above the horizontal cut of the face. The 1" is referred to as stump shot and prevents the tree from kicking back over the stump toward the faller. The backcut must never be continued to a point at which no holding wood remains. Variations of backcutting are discussed in: face-boring backcut, side-boring backcut, and side notching backcut.
BACK LEAN/SIDE LEAN: Weight of tree is opposite or opposed to the intended felling direction.
BALLISTIC NYLON: A nylon fabric of high tensile properties designed to provide protection from lacerations.
BAR OR BLADE: That part of the chain saw upon which the cutting chain travels. Long, thin projection of the chain saw upon which the saw chain travels. Improper use of the bar results in kickbacks and saw cuts. It is the extreme top and bottom of the bar's nose that is sensitive.
BARRIER: A fence, wall or railing to prevent passage or approach.
BARBER-CHAIR: Vertical split of a tree during the falling procedure. Generally a result of improper facing and/ or backcutting.
Characterized by a portion of the fallen tree being left on the stump.
BASE OF TREE: That portion of a natural tree not more than three feet above ground level.
BEAVER-TAILING: Burying the whole bar of the saw while cutting.
BED: The intended position in which a tree will be felled.
BIGHT OF THE LINE: Any area where a person is exposed to a controlled or uncontrolled moving line.
BIND OR BOUND: Series of pressures in a felled tree resulting from objects (terrain, stumps, windfalls, etc.), which prevent the tree from lying flat on he ground. The two major components of bind are impression and tension. It is their directional pressures that determine the technique and procedure used while bucking.
BINDER: A hinged lever assembly for connecting the ends of a wrapper to tighten the wrapper around the load of logs or materials.
BLOW-DOWN: Trees that have been blown down as a result of wind.
BLOWN-DOWN: An area of standing timber which has been blown over by strong winds or storms.
BOOMBOAT: Any boat used to push or pull logs, boom, bundles, or bags, in booming ground operations.
BOOMSCOOTER: A small boat, usually less than fourteen feet in length, equipped with an outboard motor, having directional pushing capabilities of 360 degrees.
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BORING: Method of using the nose or tip of the bar to saw into the tree while falling or bucking.
BOTTOM BIND: One of the five basic tree positions commonly encountered while bucking. A tree in a bottom bind situation is tensioned on the top and compressed on the bottom.
BRAILING: When tiers of logs, piles, or piles are fastened together with a type of dogline and the ends of the side members are then fastened together for towing.
BROW LOG: A log or a suitable substitute placed parallel to any roadway at a landing or dump to protect the carrier and facilitate the safe loading or unloading of logs, timber products, or materials.
BRUSH-OUT: To clean out brush and other material around the base of trees to be felled or logs to be bucked. Gives protection against saw kickback and provides safe footing. (Same as SWAMP-OUT)
BUCK: To cut a felled tree into logs.
BUCKING: Process of sawing a felled tree into sections called logs. Length of the log is dependent on the species of the tree and what type of product it will be made into.
BULLBUCK : Supervisor of the fallers. Among his responsibilities are assignment of fallers to working areas and insurance that work is done safely and efficiently.
BULLBUCKER: A foreman or supervisor of falling and bucking operations. (Same as BULLBUCK).
BUSHELING: Method of payment in which the faller is paid for how many trees he falls and bucks. Generally the number of trees is converted into thousands of bored feet and a specific amount paid for each thousand board feet.
BUTT: Bottom of a felled part of a tree.
BUTT LOG: Portion of a felled tree from the butt to the first bucking cut.
BUTT WELDING: The practice of welding something end to end.
BYPASS (Dutchman): Situation created when the two cuts of the undercut (free cut) do not meet exactly, i.e. one bypasses the other.
Creates undesirable results such as barber chairing, cracked tree butts, excessive fiber pull and misdirected fall of the tree.
CABLE YARDING: The movement of felled trees or logs from the area where they are felled to the landing on a system composed of a cable suspended from spars and/or towers. The trees or logs may be either dragged across the ground on the cable or carried while suspended from the cable.
CALKS OR CHALKS: Heavy leather boots containing numerous steel calks or spikes. A part of 12 the fallers safety equipment used to promote secure footing.
CAT-FACE: Scar or deformed section at the base of a tree caused by rot or fire.
CLEAR-CUT: An area in which all of the trees have been or will be felled, bucked and skidded in one operation. When all trees in a given area are felled.
CHOCK: A block, often wedge shaped, which is used to prevent movement; e.g., a log from rolling, a wheel from turning.
CHOCKER: A sling used to encircle the end of a log for yarding. One end is passed around the load, then through a loop eye, end fitting or other device at the other end of the sling. The end that passed through the end fitting or other device is then hooked to the lifting or pulling machine.
CHOKER: A length of wire rope with attachments for encircling the end of a log to be yarded.
COMPETENT PERSON: One who is capable of identifying hazards in the surrounding or working conditions which are unsanitary, hazardous or dangerous.
CONVENTIONAL FACE: One of the three types of faces commonly used to fall a tree; the face or undercut is taken from the butt of the tree.
CORNER-NIPPING: Special technique of partially cutting the extreme outside holding wood corners to prevent root pull, slabbing and alteration of the desired falling direction.
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CORNERS: The extreme outside position of the holding wood on either side of the tree.
CORNERS: 1) Left and right side of the holding wood. 2) Corner of the falling "face".
CORNER BLOCK: The first block the haulback passes through on its way to the tail block.
CROSSING THE LEAD: Intentional or unintentional falling of a tree across the established lead of falling direction. Although crossing the lead may be caused by wind, it generally is a result of improper falling technique.
CROTCH LINE: Two short lines attached to the same ring or shackle, used for loading or unloading.
CRUMMY: Vehicle used to transport fallers to and from the falling and bucking area.
CULL: A tree or log which is considered unmerchantable because of defects.
CUT-UP: Tree or log left standing or suspended with the falling or bucking cuts almost completed.
CUTTER: One whose primary job is to fall, buck or limb trees before they are moved to the landing area.
DANGER TREE: A standing tree that presents a hazard to employees due to conditions such as, but not limited to, deterioration or physical damage to the root system, trunk, stem or limbs, and the direction and lean of the tree.
DAY WORK: Method of payment in which the faller is paid a specific amount for working a day.
Dbh: Diameter of the tree at breast height.
DEBARK: To remove bark from trees or logs.
DECK: A stack of trees or logs.
DESIGNATED PERSON: An employee who has the requisite knowledge, training and experience to perform specific duties.
DOGS: A metal plate containing 3 to 5 points or fingers which are located in front of the chain saw protruding parallel with the bar. Dogs allow the saw to be pivoted while falling or bucking.
DOG LINE: Type of line used to fasten logs or timber products together by the use of dogs.
DOMINO FALLING: Placing undercuts and backcuts in a series of trees, then "pushing" them with another tree. Domino falling is a dangerous, unacceptable practice.
DOMINO FELLING: The partial cutting of multiple trees which are left standing and then pushed over with a pusher tree.
DOUBLE ENDED LOGS: Two logs end to end on the same lay.
DROPLINES: A short line attached to the carriage or carriage block which is used as an extension to the main line.
DRUM: A mechanical device on which line is spooled or unspoiled.
DUTCHMAN (1): Situation created when the two cuts of the undercut (free cut) do not meet exactly, i.e. one bypasses the other.
Creates undesirable results such as barber chairing, cracked tree butts, excessive fiber pull and misdirected fall of the tree. (see Bypass).
DUTCHMAN (2): (As Used In Falling): A method used to pull a tree against its lean by leaving a section of the undercut on one corner of the face. The portion left consists of a single saw kerf in one side of the face cut. A single saw kerf must never extend completely across the stump .
DUTCHMAN (3): General reference made to a special falling technique in which the constant relationships of the face, holding wood and backcut are intentionally altered to solve a particular falling problem. (Refer to Kerf Dutchman, Step Dutchman, and Swing Dutchman.) END BIND: One of the five basic tree positions commonly encountered while bucking. An end bind situation occurs on steep terrain where the force of gravity closes the bucking cuts.
ESCAPE ROUTE: A predetermined path of exit used by fallers when falling or bucking. The essential components of an escape route are: selection of the desired direction and distance, prior to falling or bucking and a well-cleared path through which to escape. Also known as retreat path.
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EXPERIENCE PERSON: A person who has been trained and has participated in the subject process for a period of time, long enough to thoroughly acquaint the person with all facets of the process.
EXTREME WEATHER Includes, but is not limited to
CONDITIONS: Strong winds (applies to timber areas only) – Wind velocity that reaches sufficient force to blow limbs from standing trees or cause windfalls or prevent cutters from falling of trees in the desired direction;
Impaired vision – Conditions such as falling snow, sleet, mist, fog, rain, dust or darkness which substantially impair visibility to the extent that employees cannot clearly see signals, moving vehicles, equipment and lines, falling trees or other hazards;
Hazardous snow or icing conditions – Snow or ice conditions which prevent escape from hazards such as falling trees, moving logs, vehicles or similar hazards; or lighting.·
F. O.P.S.: Falling object protective structure.
FACE: Edge of area formed along standing timber as timber is felled.
FACE: A section of wood sawn and removed from a tree's base. Its removal allows the tree to fall and assists in direction where it will fall. The face is comprised of two separate cuts which have constant relationships; the horizontal cut must be at least 1/3 the diameter of the tree, the sloping cut must be angled enough to allow a wide opening and the two cuts must not cross each other. See notch cut and undercut.
FACE-BORING BACKCUT: Special alteration of standard backcutting procedure used to handle particular trees such as those which are large or leaning heavily. Face-boring reduces the amount of wood remaining to be cut prior to the final back cutting.
FAIR LEAD: Sheaves, rolls, or a combination thereof arranged to receive a line coming from any direction for proper lone spooling on to a drum.
FALLER: Timber faller-bucker (coastal) or tree faller (interior).
FALLER: Specialist who falls and bucks trees in a safe manner while utilizing as much of the tree as possible. In some areas the faller only cuts the trees down and a bucker saws them into logs.
FELL (Fall): To cut down trees.
FELLER (Faller): An employee who fells trees.
FRONT END LOADER: A mobile machine mounted on a wheeled or tracked chassis, equipped with a grapple, tuck, bucket, or fork-lift device, and employed in the loading, unloading, stacking, or sorting of logs or materials.
GROUNDED: The placement of a component of a machine on the ground or on a device where it is firmly supported.
GUARDED: Covered, shielded, fenced, enclosed, or otherwise protected by means of suitable enclosures, covers, casings, shields, troughs, railings, screens, mats, or platforms, or by location, to prevent injury.
GUARD RAIL: A railing to restrain a person.
GUNNING/SIGHTING: Technique of aligning the handle bars and/or gunning mark with the desired falling direction. Since the gunning mark and handle bars are at a 90-degree angle to the bar, exact position of the face, in relation to the desired falling location, can easily be established.
GUYLINE: A line used to support or stabilize a spar.
GYPSY DRUM: A mechanical device wherein the line is not attached to the drum and is manually spooled to control the line movement on and off the drum.
HANG-UP: Situation in which a tree is lodged in another and prevented from falling to the ground. Results from a number of causes such as improper facing and/or backcutting and wind. Can be very dangerous.
HAULBACK: A line used to pull the buttrigging and mainline to the logs to be yarded.
HAULBACK BLOCK: Any block the haulback line passes through including the corner block and tailblock.
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HAYRACK: A type of loading boom where two tongs are used and logs are suspended. A transporting vehicle with multiple sets of bunks attached to a rigid frame usually used for hauling logs.
HAZARDOUS The area within a circle centered on the tree being felled and having a radius not less than FALLING AREA: twice the height of that tree.
HEAD LEAN: One of the two natural leaning forces found in most trees. Head lean is the most prominent outward slant or lean of a tree in reference to its base.
HEAD TREE: The tree where yarding and/or loading takes place. (See Spar) HEALTHCARE A health care practitioner operating within the scope of his/her license, certificate or legally authorized PROVIDER: practice.
HEEL BOOM: A type of loading boom where one tong is used and one end of the log is pulled up against the boom.
HIGH LEAD: A system of logging wherein the main line is threaded through the main line block, which is attached near the top of the spar, to obtain a lift of the logs being yarded.
HOBO LOG or HITCHHIKER: A free or unattached log that is picked up by a turn and is transported with the turn.
HOLDING WOOD: Section of wood located between the face and the backcut. Its purpose is to prevent the tree from separating from the stump until it has been committed to the face. It also helps direct where the tree will fall. The holding wood must never be completely sawn off.
HOOKTENDER: The worker that supervises the method of moving the logs from the woods to the landing.
HORIZONTAL FACE CUT: First of the two cuts required to face a tree. Its depth is minimally 1/3 the diameter of the tree and level.
HUMBOLDT FACE: One of the two types of faces commonly used to fall a tree. The face section is removed from the stump of the tree.
HUNG/LODGED TREE: See Hang-up.
HYDRAULIC JACK: A mechanical device, powered by internal pressure, used to control the direction in which a tree is to be felled.
HYDRAULIC JACK PAD: Thick steel pad which is placed between the hydraulic jack plunger and butt of the tree to distribute the upward push over a larger area.
IN THE CLEAR: A position within the work area where the probability of hazardous contact with falling trees, moving logs, rootwads, chunks, material, rigging and equipment is minimized by distance from the hazards and/or use of physical barriers, such as stumps, trees, terrain or other objects providing protection.
JACK-POT: An area in which the trees have not been felled in any particular lead or direction. Such a situation is a result of poor falling technique.
JACK STRAWED: Trees or logs piled in an unorderly manner.
JAGGERS: Any projecting broken wire in a strand of cable.
KERF: Space resulting from the cutting of a saw chain. The width of a cut is referred to as the kerf.
KERF DUTCHMAN: A special falling technique in which the constant relationships of the face, holding wood, and backcut are intentionally altered to solve a particular falling problem. The faller can, with the use of the Kerf Dutchman, force a tree to jump off the stump. If understood and properly used, the Kerf Dutchman can in specific instances solve problems of breakage and crossing roads or creeks.
KICK-BACK: A strong thrust of the saw back toward the faller generally resulting from improper use of the nose of the bar or the pinching of the bar in a cut. Kickback causes loss of control of the saw and this in turn results in numerous saw cuts each year. Kick-back also refers to a tree jumping back over the stump toward the faller.
This kind of kick-back generally results from a tree being felled into standing timber and/or lack of stump-shot.
KICKER: A piece of the face, or an equivalent object, placed in one side of a face cut to pull the tree from its lean as it falls.
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KNOB: A metal ferrule attached to the end of a line.
LANDING: Any place where logs are laid after being yarded and before transport to the worksite.
LAY: Refers to either the position in which a felled tree is lying or the intended falling place of a standing tree.
LEAD: Predetermined direction of falling the trees of a particular strip or area in regard to the relation of the trees to one another and their combined relationship to the surrounding terrain.
LEAD: The established direction in which all trees in a quarter or strip are to be felled, usually governed by the terrain of the area, or its general slope or skid road system.
LEAN: Refers to the directional tilt of a tree away from its vertical position. Many times two lean forces may be in play in the same tree. They are referred to as head lean and side lean. The lean, or leans, of a tree can be easily established with the use of a plumb-bob or axe handle.
LEANER: A tree that leans excessively, not growing straight.
LEG PROTECTOR: Ballistic nylon pad attached to one or both pant legs to protect the leg from contact with the saw chain. It can be attached to either the inside or outside of the pant leg.
LIFT TREE: An intermediate support for skylines.
LIGHTNING STRIKE: Tree that has been struck by lightning.
LILY PAD: A thin slice of wood, sometimes taken off the stump and used to cover the saw if it's to be left out.
LIMB LOCK (1): A series of cuts made on limbs to release back or side pressure and create a stay in the limb that will prevent the limb from either kicking back and striking the logger or pinching the saw.
LIMB LOCK (2): Limbing technique used to more safely handle back pressure and sideways pressure on limbs in order to reduce the likelihood of a limb under pressure kicking back and striking the logger's leg or pinching the saw.
Two bypassing cuts are made, one on the top side and one on the bottom side of the limb (top and bottom refer to the top and bottom of the limb as if the tree were standing up). The cut on the top of the limb is made closer to the trunk of the tree and the cut on the bottom is made further out on the limb. This creates a step in the limb which helps prevent the limb from kicking out or back toward the logger.
LIMBING: To cut branches off felled trees.
LOADING BOOM: Any structure projecting from a pivot point to guide a log when lifted.
LODGED TREE: A tree leaning against another tree or object which prevents it from falling to the ground. or (Hung Tree) LOG: A segment sawed or split from a felled tree, such as, but not limited to, a section, bolt, or tree length.
LOG DUMP: A place where logs are removed from transporting equipment. It may be either dry land or water, parbuckled over a brow log or removed by machine.
LOGGING MACHINE: A machine used or intended for use to yard, move, or handle logs, trees, chunks, trailers, and related materials or equipment. This shall include self-loading log trucks only during the loading and unloading process.
LOGGING OPERATIONS: Operations associated with felling and moving trees and logs from the stump to the point of delivery, such as, but not limited to, marking danger trees and trees/logs to be cut to length, felling, limbing, bucking, debarking, chipping, yarding, loading, unloading, storing, and transporting machines, equipment and personnel to, from and between logging sites.
LOG STACKER: A mobile machine mounted on a wheeled or tracked chassis, equipped with a frontally mounted grapple, tusk, or forklift device, and employed in the loading, unloading, stacking or sorting of logs.
LONG-BUTT: After a tree is felled a section of the butt-end may be sawn off because of rot.
LONG STICKS: An overlength log that creates a hazard by exceeding the safe perimeters of the landing.
MACHINE: A piece of stationary or mobile equipment having a self-contained power plant that is operated off-road and used for the movement of material. Machines include, but are not limited to, tractors, skidders, front-end
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loaders, scrapers, graders, bulldozers, swing yarders, log stackers, log loaders, and mechanical felling devices, such as tree shears and feller-bunchers.Machines do not include airplanes or aircraft (e.g., helicopters).
MAINLINE: The line attached to the buttrigging used to pull logs to the landing.
MATCH CUTTING: The felling of trees without using an undercut.
MECHANIZED FALLING: Falling of standing timber by a self-propelled mobile wheeled or tracked machine equipped with a shear or other powered cutting device.
MOBILE LOG LOADER: A self-propelled log loading machine mounted on wheels or tracks.
MOBILE YARDER: A logging machine mounted on wheels, tracks, or skids, incorporating a vertical or inclined spar, tower, or boom.
MUST: The same as "shall" and is mandatory.
NEW AREA OR SETTING: A location of operations when both the loading station and the yarder are moved.
NO-BIND: One of the five basic tree positions commonly encountered while bucking. A tree in a no-bind situation is usually found in flat terrain.
OFFSIDE: 1) Side of tree opposite to which the faller stands when falling or bucking. 2) Side of body opposite to that normally used to hold saw.
PASS LINE: A small line threaded through a block at the top of the spar to assist the high climber.
PEELER: Logs used for peeling into thin layers called veneer for the manufacture of plywood.
PERMISSIBLE: (As applied to any device, equipment or appliance)- such device, equipment or appliance has the formal approval of the United States Bureau of Mines, American Standards Association, or National Board of Fire Underwriters.
PLUMB: To gauge or assess the various types of lean in a tree.
PLUMB-BOB: Special tool used to establish the outward lean or slant of a tree in relation to its base. Generally a lead weight attached to piece of string is used.
PORTABLE SPAR A movable engineered structure designed to be used in a manner similar to which a wood spar tree would OR TOWER: be used.
PUSHER OR DRIVER: Use of a tree to drive or pushover another that does not fall although it has been faced and backcut. Such a situation results if a tree hangs-up, sits back or is skybound.
PUSHING: When a tree has been undercut and backcut and will not fall, the faller may as a last resort "push" this tree by falling another into it.
QUALIFIED PERSON: A person, who by possession of a recognized degree, certificate, professional standing, or by extensive knowledge, training, and experience, has successfully demonstrated ability to solve or resolve problems relating to the subject manner, the work, or the project.
QUARTER: That area or portion of standing timber assigned to a faller.
RATED CAPACITY: The maximum load a system, vehicle, machine or piece of equipment was designed by the manufacturer to handle.
REACH: A steel tube or wood timber or pole connected to the truck and inserted through a tunnel on the trailer. It steers the trailer when loaded and pulls the trailer when empty.
RECEDING LINE: The line on a skidder or slackline comparable to the haulback line on a yarder.
RELOAD: An area where logs are dumped and reloaded or transferred as a unit to another mode of transportation.
RIGGING CREW: Crew and equipment that drags logs to an area called a deck or landing. From the deck, logs are loaded onto trucks for transport.
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RIGGING CUT: The bucking of non-merchantable trees which have been felled or blown down to facilitate easier access to the area by the rigging crew.
RIGGING CUT OR A tree may be lying in such a position that a normal bucking cut cannot be made safely. In order to WEAKENING CUT: facilitate yarding or skidding, the faller will make partial bucking cuts from a safe position, perhaps two log-lengths apart.
ROLLWAY: Any place where logs are dumped and they roll or slide to their resting place.
ROOT PULL: The pulling out of a portion of a tree's root system. Generally a result of not cutting up the corners of the holding wood close enough on a large or heavily leaning tree.
ROOTWAD: The ball of a tree root and dirt that is pulled from the ground when a tree is uprooted.
R. O.P.S.: Roll over protection structure.
RUNAWAY: A tree that has rolled or slid downhill below previously felled and bucked timber.
RUNNING LINE: Any line that moves.
RUSSIAN COUPLING: An incomplete bucking cut as a result of an unsafe bucking situation. In such an instance the faller only partially cuts through the tree. This situation can be very dangerous to the rigging crew. If a Russian coupling is left, the tree should be marked and supervisors notified.
SAFETY FACTOR: The ratio of breaking strength to a safe working strength or loading.
SAFETY GLASS: A type of glass that will not shatter when broken.
SAIL BLOCK: A block hung inverted on the sail guy to hold the tong block in proper position.
SAW LOG: Logs taken to be manufactured in lumber.
SCALER: The person who measures the diameter and length of the logs determines specie and grade, and makes deductions for footage calculations.
SCHOOL-MARM: A tree stem that branches into two or more trunks or tops.
SEGMENTS: Calculation arrived at by dividing the height (in feet) of a tree by the diameter at breast height (in feet). Used to determine whether or not a tree can be successfully wedged over against the lean.
SERVICEABLE A state or ability of a tool, machine, vehicle or other device to operate as it was intended by the manufacturer CONDITION: to operate.
SET: Combination of two fallers, or one faller and one bucker working together.
SET OR GANG: May consist of one faller who fells and bucks timber. Might be one faller and one bucker working as a team. (This term was used in "hand" falling era also; i.e., two fallers, two buckers, to form a four-man set or gang before chain saws came into use.) SET-BACK: Occurs when a tree settles back opposite to the intended direction of fall; hazardous situation when the faller loses control of a tree.
SHALL: A requirement that is mandatory.
SHALLOW NOTCHES: An undercut that has not been sawn deeply enough into the tree.
SHEAR LOG: A log placed in a strategic location to divert passage of objects.
SHORE SKIDS: Any group of timbers spaced a short distance apart on which logs are rolled.
SHOULDER PAD: Leather, canvas or felt pad threaded throughout the suspenders on one shoulder to protect the body from contact with a saw being carried.
SIDE BIND: One of the five basic tree positions commonly encountered while bucking. A tree in a side bind situation is compressed on one side and tensioned on the other.
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SIDE-BORING BACKCUT: Intentional alteration of the standard backcutting procedure to prevent loss of control of a tree and/or its barber-chairing. Side-boring is an effective technique of reducing the amount of holding wood required to fall a tree. The nose of the bar is pushed into the tree behind the face and 2" above the horizontal cut.
SIDE LEAN: One of the two natural leaning forces found in many trees. Compared to head lean, side lean is the lesser pronounced lean.
SIDE-NOTCH: Additional side saw cuts made to prevent "barber-chair" or to facilitate sawing large trees into logs.
SIDE-NOTCHING Another intentional alteration of standard backcutting to prevent loss of control and/or barber-chairing. This BACKCUT: method also reduces the amount of holding wood remaining to be cut by cutting each side prior to the final across the back severing.
SIDEWINDER: A limb or sapling that is bent under a tree that has been felled. Unintentionally cutting them is extremely dangerous. In some areas sidewinder refers to the falling of a tree in an unintended direction. (See Spring Pole).
SINGLE-JACK: A faller who falls and bucks trees in an area by himself.
SIGNAL PERSON: The person designated to give signals to the machine operator.
SIT-BACK: Refers to a tree that settles back on the stump closing the kerf of the backcut. Generally a result of improper determination of the tree's lean and/or of wind.
SWASH: The use of a natural physical object, such as a tree, to change the direction of a line rather than with a block.
SKIDDER: A machine or animal used to move logs or trees to landing.
SKIDDING: The yarding of trees or logs by pulling or towing them across the ground.
SKYBOUND: A tree that fails to fall after being faced and backcut. Generally a result of picking the wrong lean.
SKYLINE: The line suspended between two points on which a block or carriage travels.
SLACK LINE: A form of skyline where the skyline cable is spooled on a donkey drum and can be raised or lowered.
SLACK PULLER: Any weight or mechanical device used to increase the movement of a line when its own weight is inadequate.
SLABBING: Generally a result of improper technique and/or sequence of bucking cuts which result in a lateral split of a log.
SLIPSHOD: Poor procedure or technique of falling or bucking.
SLOPE (Grade): The increase or decrease in altitude over a horizontal distance expressed as a percentage. For example, a change of altitude of 20 feet (6 m) over a horizontal distance of 100 feet (30 m) is expressed as a 20 percent slope.
SLOPING FACE CUT: The second of the two cuts required to face or undercut a tree. It must be angled sufficiently to allow a wide mouthed face opening.
SNAG: Any standing dead tree or portion thereof.
SNAG: A dead or dying tree that is still standing. Snags must be felled prior to beginning work on an area. Special procedure must be observed when falling snags.
SNAP TOP: Broken off top of a tree as a result of wind and/or rot.
SNIPE OR TRIM: Allowance for falling and bucking cuts; extra length added to regular log length.
SPAR/SPAR TREE: A device rigged for highlead, skyline or slackline yarding.
SPEEDER: A small self-powered vehicle that runs on a railroad track.
SPIKE TOP: A live tree that has a dead barkless top.
SPIKED TOP: When the top of a tree dies and loses its branches, leaving a tall, dry spike of dead wood. Usually occurs in cedar.
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SPRING BOARD: Metal-toed plank used to elevate the faller above a large swelled butt or to allow him to fall on extremely steep ground. A notch is sawn into the side of the tree and spring board toe inserted into it. The faller stands on this plank to face and backcut.
SPRING POLE: A tree, segment of a tree, limb, or sapling that is under stress or tension due to the pressure or weight of another object.
SQUARE LEAD: The angle of 90 degrees.
SQUIRREL: A weight used to swing a boom when the power unit does not have enough drums to do it mechanically.
SQUIRREL TREE: A topped tree, guyed if necessary, near the spar tree in which the counter balance (squirrel) of a tree rigged boom is hung.
STAGGED OR Pants whose cuffs are removed and length shortened to facilitate unrestricted movement for working and BOBBED PANTS: escaping.
STAGGED TROUSERS: The faller's trousers are maintained without cuffs and are shortened to prevent tripping hazards.
STEP DUTCHMAN: An intentional alteration of standard falling technique to solve problems of maintaining a lead. The Step Dutchman is put in play by sawing off the lean side holding wood and placement of a step (rock, wood) into the face to force the tree to pivot to the desired direction.
STIFF BOOM: Two or more boom sticks wrapped together on which boom persons walk or work.
STINGER: Metal nail-like affair attached to the end of a logger's measuring tape. After inserted, it will secure one end of the tape allowing the faller to proceed down the tree to accurately determine the desired length of the log.
STRAP: Any short piece of line with an eye or "D" in each end.
STRAW LINE: A small line used for miscellaneous purposes.
STRIP OR QUARTER: Designated area of trees established by natural boundaries (roads, streams, etc.), or ribbons within which fallers are assigned.
STRIP LAYOUT: Refers to the best method of falling the trees of an area in relation to themselves and the terrain. Strip layout is the faller's first consideration in the falling sequence.
STUB: A standing dead tree characterized by a broken off top and very few or no remaining branches.
STUMP SHOT: Two inches or more height difference between the horizontal cut of the face and the backcut. The difference in height establishes an anti-kick step that will prevent a tree from jumping back over the stump toward the faller.
SWAMPING: The falling or cutting of brush around or along a specified place.
SWAMPOUT: Refers to the clearing away from the base of a tree and bucking area loose debris that could hamper footing, use of tools, and/or escaping. Preparing the working and escaping area is an essential part of the falling procedure. (Same as BRUSH-OUT) SWIFTER: A piece of equipment used to tie the side sticks of a log raft together to keep the raft from spreading.
SWING CUT: A back cut in which the holding wood on one side is cut through.
SWING DUTCHMAN: A special falling technique which, when used properly, allows the faller to minimize breakage and maintain a lead. As with the Step Dutchman, this alteration of falling technique caused the tree to swing. The swing results because the holding wood on the lean side has been severed. The swing Dutchman does not utilize a step and will not pivot a tree as much as will the Step Dutchman.
TAIL BLOCK: The haulback block at the back end of the show.
TAIL HOLD: An anchor used for making fast any line or block.
TAIL TREE: The tree at the opposite end from the head tree on which the skyline or other type rigging is hung.
TANG: Sharp or pointed end of chain saw file.
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TEEPEE: Unintentional lodging of two or more trees in another standing tree generally caused by improper or poor falling technique.
THIRD FACING CUT: Special technique of making an "extra" facing cut to promote a proper face. Root protrusions, cat-faces and rot are some of the common sources that require a third facing cut.
THROW BACK: Portions of trees or limbs propelled back toward the timber faller by the action of a tree falling through other standing trees.
TIE DOWN: Chain, cable, steel strips or fiber webbing and binders attached to a truck, trailer or other conveyance as a means to secure loads and to prevent them from shifting or moving when they are being transported.
TIGHT LINE: When either the mainline or haulback are held and power is exerted on the other or when power is transported.
TIN PANTS AND JACKET: Outside clothing generally made of canvas material that is waterproofed.
TONG LINE BLOCK: The block hung in a boom through which the tong line operates.
TONGUE: A device used to pull and/or steer a trailer.
TONGUE AND GROOVE: Bucking technique used to hold logs in place after bucking cuts are made. Used where trees can slide or roll after bucking.
TOP BIND: One of the five basic tree positions commonly encountered while bucking. A tree in a top bind situation is compressed on top and tensioned on the bottom.
TOP LOCK: Limbing technique used to cut off the tops of felled trees whose stem is under stress. Two offset and bypassing cuts are made in the stem near the top of the tree. The first cut is made on the side of the tree that is under compression. The second cut is offset from the first and made on the side of the tree that is under tension.
TOP LOCK: Partial cutting of the top of a felled tree under compression or tension by using two offset and bypassed cuts.
TOPPING: Cutting off the top section of a standing tree.
TRACTOR: A machine of wheel or track design used in logging.
TRACTOR LOGGING: The use of any wheeled or tracked vehicle in the skidding or yarding of logs.
TRANSFER: Changing of logs in a unit from one mode of transpiration to another.(As Used in Loading) TREE JACK: A grooved saddle of wood or metal rollers contained within two steel plates, attached to a tree with a strap, sed as a guide for skyline, sail guy, or similar static line. It is also formed to prevent a shard bend in the line.
TREE JACK (SHOE): A grooved saddle of rollers contained within two steel side plates attached to a tree with a strap as a guide for skyline, sail guy or similar static line.(Other than for Directional Falling Use) TREE PLATES: Steel bars sometimes shaped as elongated J's, which are fastened near the top of a tree to hold guyline and prevent them from cutting into the tree when tightened. The hooks of the J are also used to prevent the mainline block strap from sliding down the tree.
TREE PULLING: A method of falling trees in which the tree is pulled down with a line.
TRIM: An allowance of length added to the desired length of a log. (Example: desired length 17 feet, actual length cut 17 feet 6 inches).
TURN: Any log or group of logs attached by some means to power and moved from a point of rest to a landing.
UNDERCUT: A notch cut in a tree to guide the direction of the tree fall and to prevent splitting or kickback.
UPROOTED: Trees that have been blown over as a result of wind.
VEHICLE: A car, bus, truck, trailer or semi-trailer owned, leased or rented by the employer that is used for transportation of employees or movement of material.
VEHICLE/CREW BUS: A car, bus, truck, trailer or semi-trailer owned, leased, or rented by the employer that is used for transportation of employees or movement of material.
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WEDGE: A plastic or metal tool used by a faller to prevent a tree from falling backwards, redistribute a tree's weight to a desired direction and to prevent the bar from being pinched while bucking.
WEDGE OR PIE: A section sawn from a tree during the bucking sequence to allow for the directional pressures of various bind situations. Splits, slabs and excessive wood-pulling are minimized when a wedge is sawn.
WIDENING OR DAYLIGHTING: Taking an additional strip of timber off the right-of-way or quarter after the road is in.
WIDOW MAKER: Any loose overhead debris such as limbs or tree tops that may fall at any time. Widow makers are extremely dangerous and present the faller with a continual source of danger. Limb or other loose material dropped or thrown from a tree toward the faller as the tree is felled.
WINCHING: The winding of cable or rope onto a spool or drum.
YARDING: The movement of logs from the place they are felled to a landing.
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Appendix D
Random Number List
The list of random numbers provided is designed to order randomly a list of logging/sawmill employers which contains 100 or fewer employers.
A larger list of random numbers can be supplied from the Office of Statistics* upon request. The following table has been produced by ordering the integers from 1 to 100 randomly listed in five columns. For purposes of random selection, the attached random number lists may be used or any other authentic random number list available.
The procedure to be used is as follows
- Make all modifications to the establishment list.
- Number the establishment list sequentially; i.e., assign "1" to the first employer on the list, "2" to the second, etc.
- If the number of total employers is more than 100, obtain a larger table as necessary.
- Cross out all numbers on the random number list which are greater than the number of employers on the establishment list.
- Include all employers in the inspection cycle whose sequence number is listed in column I. If the size is larger than the size of column I, start at the top of column II and select enough numbers to fill out the inspection cycle
- Draw a line after the last random number used; this will be the starting point for the next inspection cycle.
TABLE D -1
EXAMPLE: Random Number Table (100 Numbers) Column I Column II Column III Column IV Column V Suppose there are 70 firms on the establishment list and an 94 98 89 20 83 inspection cycle containing 12 firms is needed. 64 97 80 57 58 Random number list one is selected and all numbers greater 18 33 15 65 41 than 70 are crossed out. 90 11 45 25 93 The first inspection cycle would then contain firms with the 92 52 85 54 46 following sequence numbers: 64, 18, 16, 22, 47, 14, 39, 51, 16 40 84 6 26 38, 67,24 and 1. 74 75 49 71 87 Draw a line under the number 1 and start the next cycle with 22 37 13 44 62 the numbers 5, 33, 11 on down Column II. 47 72 29 70 21 14 82 19 48 30 100 63 8 78 34 39 35 73 88 23 77 56 55 9 28 86 69 2 60 99 51 79 32 43 7 38 42 81 95 59 67 12 96 91 3
24 68 31 53 66 1 61 27 17 36
5 76 50 10 4 * Prepared by the OSHA Office of Statistics October 11, 1994
D-1
[TABLE 25-1]
TABLE D -1 Random Number Table (100 Numbers) | | | | Column I | Column II | Column III | Column IV | Column V 94 | 98 | 89 | 20 | 83 64 | 97 | 80 | 57 | 58 18 | 33 | 15 | 65 | 41 90 | 11 | 45 | 25 | 93 92 | 52 | 85 | 54 | 46 16 | 40 | 84 | 6 | 26 74 | 75 | 49 | 71 | 87 22 | 37 | 13 | 44 | 62 47 | 72 | 29 | 70 | 21 14 | 82 | 19 | 48 | 30 100 | 63 | 8 | 78 | 34 39 | 35 | 73 | 88 | 23 77 | 56 | 55 | 9 | 28 86 | 69 | 2 | 60 | 99 51 | 79 | 32 | 43 | 7 38 | 42 | 81 | 95 | 59 67 | 12 | 96 | 91 | 3 24 | 68 | 31 | 53 | 66 1 | 61 | 27 | 17 | 36 5 | 76 | 50 | 10 | 4
[/TABLE]
Tree Trimming Safety Inspection ProgramDoc ID: 14-234
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VOSH PROGRAM DIRECTIVE: 14-234 ISSUED: April 26, 2011
Subject Local Emphasis Program - Tree Trimming Operations
Purpose This local emphasis program (LEP) replaces VOSH Directive 14-398B, Local Emphasis Program - Tree Trimming Operations Felling and Tree Delimbing, for all tree trimming operations statewide and transmits it to field personnel.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
Scope This Directive applies to VOSH statewide.
Reference Not applicable.
Cancellation VOSH Program Directive 14-398B (May 1, 2009).
Effective Date 26 April 2011.
Action The Director of VOSH Safety and all Regional Directors and Compliance Managers shall ensure that procedures established in this Directive are adhered to for conducting inspections in tree felling and tree delimbing operations.
Courtney M. Malveaux Commissioner
Distribution: Commissioner of Labor and Industry Cooperative Programs Director & Manager Assistant Commissioner - Programs VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Regional III & Norfolk Area Offices Legal Support & IMIS Staffs
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I. Background.
The Department of Labor and Industry’s Virginia Occupational Safety and Health (VOSH) Program and the Virginia Safety and Health Codes Board have adopted a final regulation for Tree Trimming Operations, 16VAC25-73. The final regulation will take effect on April 27, 2011, and the text of the final regulation, along with free downloadable training and information materials can be found on the Department’s Web site (see: http://www.doli.virginia.gov)
The final regulation is also being published in the Virginia Register of Regulations on March 28, 2011 (see: http://legis.state.va.us/codecomm/register/vol27/Welcome.htm)
Since 1993, Virginia has had 59 non-logging, tree trimming/cutting/felling fatalities (7% of all fatalities since 1993), with 47 of those occurring since 2000 (9% of all fatalities since 2000). On average over the last 10 years, there are four (4) fatal tree trimming accidents that occur per year which could be prevented if the final regulation is fully complied with. For an industry of the relatively small size of the tree care industry, this is a very high number of fatal accidents.
The Tree Trimming Industry approached the Department about the possibility of adopting a comprehensive regulation addressing tree trimming in 2001. They requested a regulation based on the then ANSI Z133.1-2000. Discussions with the Department resulted in a commitment from the industry to make significant changes to the ANSI standard, which culminated in the adoption of the revised ANSI Z133.1-2006, referenced above. The Department initiated this rulemaking in 2007, with the assistance of a regulatory work group composed of private and public sector representatives. The following individuals participated in the Department’s regulatory work group: Peter Gerstenberger, Senior Advisor for Safety, Compliance & Standards Tree Care Industry Association (TCIA) Bryan Giere, CTSP, Northern Virginia Tree Experts, Inc.
Andrew T. Ross, CTSP, President, RTEC Treecare Sten Compe, Big "O" Tree & Lawn Service, Inc.
M. Scott Turner, CTSP, President, TrueTimber Tree Service, Inc.
David G. Marren, Vice President of Regulatory Affairs, F. A. Bartlett Tree Expert Co.
Peter Girardi, TrueTimber Tree Service, Inc.
Kristina Villaire, City of Virginia Beach Thomas R. Scallorn, CSP, Virginia Department of Transportation
II. Phased Enforcement Approach.
To provide employers and employees with sufficient time to familiarize themselves with the requirements of the comprehensive new Tree Trimming Operations regulation, the VOSH Program will use a phased enforcement approach:
N. VOSH Inspectors/Consultants will be provided with handouts on the new regulation that can be distributed to employers and employees in the weeks leading up to the effective date of April 27, 2011. A training program will be posted on the Department's Web site. Articles on the new regulation will be sent out for publication to organizations with newsletters. "Quick cards" will be available for download from the Department’s Web site to briefly explain requirements of the regulation, and will be translated into Spanish as well. A VOSH Directive with enforcement procedures and interpretations will be posted on the Department’s Web site.
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B. For the first month after the effective date of the regulation, April 27, 2011 to May 26, 2011, VOSH will primarily operate in a non-enforcement mode with regard to the new regulation, performing outreach activities with employers and employees. However, current protections for employees will remain in place during the outreach period – see 3. below. If during an onsite inspection, violations of the new regulation are noted, VOSH inspectors will give one "warning" to the employer for any noted violations at the specific worksite, but not cite the violation. The VOSH inspector will verify that the violation is corrected, and note the violation and corrective action taken in field notes. The warning and handout materials need to be provided to an on-site supervisor, foreman, or lead person. If the VOSH inspector returns the next day and finds the same violation recurring, or if the employer refuses to correct the violation, the employer can be cited under the new regulation.
C. During the first month after the effective date of the regulation, April 27, 2011 to May 26, 2011, employers shall at a minimum protect employees’ safety and health by continuing to comply with existing federal identical VOSH regulations and 16VAC25-60-120 of the VOSH Administrative Regulations Manual.
D. For the second month after the effective date of the regulation, May 27, 2011 to June 26, 2011, VOSH will discontinue enforcement of existing federal identical regulations that are superseded by the new regulation and fully enforce the following sections of the Tree Trimming Operations regulation:
§10, Scope; §20, Definitions; §40, General Safety Requirements; §50, Electrical Hazards; §60, Safe Use of Equipment and Vehicles in Arboriculture; §70, Portable Power Hand Tools; §80, Hand Tools and Ladders; and §90, Work Procedures E. Section 30, which contains the training requirements, will not be cited during the second month after the effective date (May 27, 2011 to June 26, 2011). This extra time period will give employers and employees time to access the training materials that are being provided.
F. All sections of the regulation will be fully enforced starting June 27, 2011.
III. Scope of Tree Trimming Operations Regulation, 16VAC25-73.
16VAC25-73-10.C. This regulation is intended to apply to all employers engaged in the business, trade, or performance of arboriculture, including employers engaged in tree pruning, repairing, maintaining; removing trees; cutting brush; or performing pest or soil management during tree care operations who hire one or more persons to perform such work. This regulation may require situational modifications in response to personnel emergencies and is not intended to limit the options available to emergency responders.
This regulation does not apply to nonarboricultural landscaping operations.
This regulation does not apply to line-clearance tree trimming activities as defined in 16VAC25-73-20.
Such activities are covered by 16VAC25-90-1910.269.
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This regulation does not apply to logging operations covered by 16VAC25-90-1910.266.
This regulation does not apply to tree removal activities where the primary objective is land clearing in preparation for construction, real estate development, rights-of-way for new utility installations or other related activities, unless directly supervised by a qualified arborist or qualified line-clearance arborist.
Such activities are covered by 16VAC25-90-1910.266.
IV. Procedures.
A. VOSH personnel statewide shall be instructed to be on the lookout for tree trimming operations on general industry and construction worksites. Every observation of these activities shall be handled as follows:
- Regardless of whether a violation is observed, whenever a CSHO sights or receives any other notice of a general industry or construction operation involving tree trimming operations (including nonformal complaints, other government referrals and reports from members of the public), the CSHO shall:
a. Make note of the state and condition of the work operation insofar as it is known, including any apparent serious hazards. b. Note the name and address or location of the worksite and the contractor (where applicable) performing the operation, if known.
-
All general industry and construction work activities in which tree trimming operations are observed shall be inspected. The CSHO shall immediately notify his supervisor that an inspection has been opened pursuant to this LEP.
-
Complaints and other referrals involving general industry and construction operations where tree trimming operations are occurring shall be scheduled as unprogrammed inspections under the LEP, conducted in accordance with procedures found in the VOSH FOM. Such notices, therefore, need not be responded to with the usual letter to the employer.
B. Although sightings will normally be those which occur during the course of routine travel during duty or nonduty hours, the discovery of these work activities may be the result of a specific search to find activities involving tree trimming operations at the discretion of the Commissioner. Verification of information received from sources other than CSHO observation, as indicated in IV.A.1. of this Directive, is also permitted under this LEP.
C. Documentation of the events leading up to the observation or the reporting of general industry and construction operations with tree trimming operations shall be maintained by the Regional Office in case of denial of entry.
D. When an inspection is not conducted because consent has not been obtained, a warrant shall be sought in accordance with the current procedures for handling such cases. A warrant may not be necessary, however, if the violations are in plain view. In such situations, the Regional Compliance Manager shall contact the Division of Legal Support for guidance.
E. The scope of inspections conducted under this LEP shall normally be limited to activities involving tree trimming operations. If the inspection is to be expanded, the principles given in the VOSH FOM shall be followed.
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V. Recording in IMIS.
The following guidelines shall be applied when recording inspections conducted under this LEP or other inspections where general industry and construction operations involve tree trimming operations:
Use the VOSH-1 Form in filling out an inspection report.
-
For Inspection Type, find item 24, and enter an “H” after the colon. (The words “Programmed Planned” will appear on the screen.)
-
For Inspection Classification, find item 25c and type a “Y” after the colon. (The words “Local Emphasis Program” will appear on the pop-up screen.) Then enter “TREETRIM” in capital letters in the left column of the pop-up screen.)
5
Payment for Medical Exams in EmploymentDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER FIVE
PAYMENT FOR MEDICAL EXAMS AS A CONDITION OF
EMPLOYMENT
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Last Revised January 2000 Payment for Medical Exams – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Payment for Medical Exams – Page 3
- 00 Unlawful to Require Payment for Medical Examination as Condition of Employment
A. Coverage
The medical examination statute is set forth in § 40.1-28 of the Code of Virginia. It applies to all private industry employers doing business in the Commonwealth.
B. Summary
Employers cannot require an employee or prospective employee to pay the cost of a medical examination or the costs for furnishing medical records as a condition of employment unless the medical examination is required by local, state or federal law.
A medical examination referred to in this section is not construed to cover only a complete physical or medical examination. Rather, it includes all types of medical procedures whether singularly such as a drug test or a tuberculin test or a combination of such procedures such as a complete physical.
Employers may require an employee to pay the cost of a medical examination or the costs of furnishing medical records as a condition of employment if such is required by any local, state, or federal law or regulation such as the Interstate Commerce Commission (ICC) requires truckers to secure a physical examination each year; the ICC requires the physical, not the employer; thus, the employee could be made to pay for such costs.
There are instances, however, when a law will require a certain medical procedure and also specify who is to incur the costs. For example, VOSH regulations in connection with the asbestos program require an employee to secure a medical examination and also require payment to be made by the employer.
In summary, generally any medical examination or medical procedure required by law would be exempt from § 40.1-28, and the employee could be required to pay such costs as a condition of employment. The cost may be deducted from wages provided the employer first secures written and signed authorization from the employee(s) pursuant to § 40.1-29 C of Virginia’s Payment of Wage Law.
C. Case Assignment
-
Regional, Field, or Central Office staff member may receive the complaint.
-
Complaint must be received in writing.
D. Investigation
-
Interviews complainant.
-
Interviews employer. Payment for Medical Exams – Page 4
-
Conducts records review/audit.
-
Interviews co-workers/witnesses if necessary.
-
Determines the validity of the complaint and the amount that should be reimbursed each affected employee.
E. Informal Resolution
- Discuss findings and determination with employer.
2. Inform employer
(1) To cease and desist requiring employees to pay the cost of medical examinations or the costs for furnishing medical records as a condition of employment.
(2) To reimburse the named employees all moneys withheld for medical examinations or furnishing medical records as a condition of employment.
(3) Civil penalties under the authority of § 40.1-28 will be assessed by DOLI if the affected employees are not reimbursed all moneys withheld from the employees’ wages or paid for with other moneys of the employees for medical costs as a condition of employment and if informal settlement is not made within 15 days from receipt of the forthcoming Demand Resolution Letter.
(4) That all employees who file complaints alleging unauthorized deductions from their wages for medical costs will be advised of their rights under § 40.1-29 of the Code of Virginia. Final Wage Orders may be issued by the Commissioner of DOLI to recover unauthorized deductions, and additional civil money penalties may be assessed under the authority of § 40.1-29.
- Demand Resolution Letter
The Representative will prepare and mail the Demand Resolution Letter immediately after Informal Conference with employer. The Representative will have the revised letter reviewed and approved by the Supervisor before mailing.
The letter will be sent by first-class mail.
- Informal Compliance Obtained
If employer complies within 15 days of the letter date of the Demand Resolution Letter, case will be closed; no penalty will be assessed. Payment for Medical Exams – Page 5
E. Penalty Assessment Under § 40.1-28
- Case File Preparation and Submission of Penalty
If employer does not comply within 15 days of the letter date of the Demand Resolution Letter, Representative will prepare the Medical Examination Costs Civil Money Penalty Report calculation sheet. A penalty will be calculated for each employee who has had to pay medical costs as a condition of employment.
Such medical cost amounts may have been deducted from the employee’s wages which is determined by the Representative during the investigative records/review audit or paid with other moneys of the employee which is documented by the Representative through employee/employer interviews, review of the employer’s employment policy, etc. The case file will be submitted to the Supervisor for review and approval. Upon receiving approval, the Representative will submit the case file to the Central Office for assessment of the penalty.
- Assessment of Penalty
The Central Office will assess the penalty, by certified and regular first-class mail.
A copy of the penalty calculation sheet will be sent to the employer with the assessment letter. The Central Office will notify the Representative of the amount and date the penalty is paid or that the payment has not been received and the 15 days after receipt of the assessment has expired.
- Penalty Contested
If the employer notifies DOLI within 15 days of receipt of the assessment letter that he wishes to contest the penalty before the appropriate court, the case will be forwarded to the Central Office to be set for trial in the appropriate general district court.
- Final Order
If the employer does not pay the penalty or contest, the Representative will prepare a draft Final Order, and submit to Central Office. Central Office will prepare the Final Order, and it will be submitted for approval and signing to the Commissioner. The Final Order will be sent by certified and first-class mail. The Representative will be furnished a copy of the Final Order .
- Recording Final Order
If the Final Order is not paid within 18 days (15 days plus 3 days mailing), the Central Office will prepare the Certification of Final Order and send to the Representative for recording with the appropriate circuit court(s). The Representative will send the recordation information to the Central Office for sending to collection. Payment for Medical Exams – Page 6
- Tracking and Collection of Final Order
The Central Office will track all penalty assessment and penalty collections. If the Final Order is not paid, the case will be sent to the collection attorney or collection agency and/or the Commonwealth’s Debt Set off Program.
- Accounts Receivable Report
The Central Office will prepare the quarterly Accounts Receivable Report and submit to DOLI’s accounting office
F. Action Under Section 40.1-29
-
Upon receiving a ”Statement of Claim for Unpaid Wages” form from each employee who has had moneys deducted from his or her wages for medical costs, the Representative will proceed with the payment of wage procedures. Action under § 40.1-29 will only be taken for those employees who file a wage claim with DOLI. On the other hand, penalty calculations under § 40.1-28 will be made based on all employees who have had to pay such medical costs as a condition of employment whether deducted from the paycheck or paid for with other moneys of the employee.
-
If the employer fails to comply with the Payment of Wage Law, a Final Wage Order and a Final Penalty Order under § 40.1-29 will be issued.
-
The Central Office will track all penalty assessments and collections.
Electrical Standards Interpretations for ConstructionDoc ID: 06-222
--- Page 1 ---
VOSH PROGRAM DIRECTIVE: 06-222 Issued: June 15, 1987
Renumbered: August 15, 2005
SUBJECT: Interpretations of Electrical Standard for Construction Industry (§§1926.432(a)and 1926.417(b))
A. Purpose.
This revised directive updates old references and renumbers this interpretations of standards to conform to the VOSH program directives’ new classification and numbering system (See VOSH Program Directive 01-001A).
This directive transmits to field personnel federal OSHA interpretations of §§1926.432(a) and 1926.417(b) of the Electrical Standard for the Construction Industry.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies VOSH-wide and specifically to Occupational Safety Compliance and Cooperative Programs personnel.
C. Action.
Directors and Managers shall ensure that field personnel understand and enforce the interpretive guidance for §§1926.432(a) and 1926.417(b) of the electrical standard for the construction industry.
D. Cancellation.
VOSH Program Directive 12-222 (June 15, 1987).
--- Page 2 ---
E. Background.
The attached interpretations address questions which have arisen at both the federal and state level. Federal OSHA issued the interpretations in response to those questions on February 27, 1987.
C. Ray Davenport Commissioner
ATTACHMENT: Electrical Standards for Construction, Revised Subpart K (2/20/87).
DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner – Programs Directors and Managers VOSH Compliance Staff Legal Support Staff OSHA Regional Administrator, Region III OSHA Area Office, Norfolk
--- Page 3 ---
U. S. Department of Labor Occupational Safety and Health Administration Washington, DC 20210
FEB 27 1987 Reply to the Attention of
MEMORANDUM FOR: STATE DESIGNEES 7(c)(1) Consultation Managers
FROM: BRUCE HILLENBRAND, Director Federal-State Operations
SUBJECT: Electrical Standards for Construction, Revised Subpart K
The attached memorandum addresses a number of questions that have arisen recently with regard to the application of the newly revised Subpart K, the electrical standard for construction, to the electrical utility industry. We understand similar questions have arisen in the States in applying their standard. We hope this will be of assistance to you in addressing them. There is also a pending court challenge to the standard, brought by the Edison Electric Institute, which addresses these and other issues. If you have further questions, please contact your respective Regional
Administrator.
Attachment cc: Attachment previously provided Ras through OFC
--- Page 4 ---
U. S. Department of Labor Occupational Safety and Health Administration Washington, DC 20210
FEB 20 1987 Reply to the Attention of
MEMORANDUM TO: REGIONAL ADMINISTRATORS
STATE DESIGNEES 7(c)(1) CONSULTATION MANAGERS
FROM: BRUCE HILLENBRAND, Director Federal-State Operations
SUBJECT: ELECTRICAL STANDARDS FOR CONSTRUCTION,
REVISED SUBPART K
In revising its electrical standards for construction, OSHA devised a new format, which divides 29 C.F.R. 1926, Subpart K into four categories. As stated in the preamble to the final rule (51 Fed. Reg. 25297), OSHA believes that the use of this format can provide for the continued effective coverage of hazards and equipment formerly addressed, with enough flexibility to accommodate other equipment and protective methods in the future. Electrical safety-related
work practices, Part II of this new format, carried over work-practice requirements from the former Subpart K. For example, the former §1926.400(g) was moved, without substantive change, and placed in new §1926.417, under Part II of Subpart K.
Questions have arisen regarding the application of newly-revised 29 C.F.R. 1926 Subpart K to the electric utility industry. OSHA has therefore determined to clarify the Subpart with respect to two provisions, 29 C.F.R. 1926.432(a) and 29 C.F.R. 1926.417(b).
- 29 C.F.R. 1926.432(a). Section 1926.432(a), requiring that equipment used in certain areas be “identified for use” in those areas by testing laboratories, is not applicable to power generation installations. Section 1926.432 was taken directly from Sections 110-11 and 300-6 of the 1981
National Electrical Code. Because installations for the generation, transmission, or distribution of electric energy are excluded from the scope of the NEC, it was not OSHA’s intent that new §1926.432 be applied to such installations.
- 29 C.F.R. 1926.417(b). A second concern regarding Subpart K relates to application of 29 C.F.R. 1926.417(b) to electric utilities. That provision, titled “Lockout and tagging of circuits,” requires that”equipment or circuits that are deenergized shall be rendered inoperative...” This provision was taken without change from existing Subpart K and no change in required practices is intended. OSHA does not construe this provision to require that all disconnects used for deenergization of equipment or circuits be locked in all instances in the electric utility industry.
See 51 Fed. Reg. 25315. Specifically, where there are unique elements of power generating
installations that would make application of locks or other means of rendering equipment inoperable infeasible, the standard should not be read to require locks provided that an equivalent
--- Page 5 ---
level of employee safety is achieved by tagging.
Guidance for implementing this determination may be drawn from pertinent provisions of Subpart V of the Construction Standards, governing construction work performed on power transmission or distribution lines or equipment, including construction in energized substations.
Where lines or equipment must be deenergized during construction, 29 C.F.R. 1926.957(b) and 1926.950(d) apply to require appropriate tagging procedures. Thus, to promote uniformity of procedures for deenergizing and tagging of generating installations during all types of work and to maximize the safety of affected employees, OSHA does not apply §1926.417 to require lockout of installations of electric equipment where lockout is infeasible, as long as the employer
is following the procedures for tagging prescribed in §1926.950(d) as specified in 1926.957(b), and is adequately training employees in the use of these procedures.
VOSH Cession of Enforcement at Radford ArsenalDoc ID: 06-005
--- Page 1 ---
VOSH PROGRAM DIRECTIVE: 06-005 (e-version) ISSUED: July 21, 1986
SUBJECT: Radford Arsenal and Radford Army Ammunition Plant: VOSH Cession of Enforcement Jurisdiction to Federal OSHA
A. Purpose.
This directive relinquishes VOSH enforcement jurisdiction over the Radford Arsenal and Radford Army Ammunition Plant to Region III of the Federal Occupational Safety and Health Administration (OSHA) in accordance with Section 4(d) of the Agreement Under Section 18(e) of the Occupational Safety and Health Act of 1970 (October 1, 1981, Occupational Agreement) and OSHA Instruction STP 2.14.
B. Scope.
This directive applies VOSH-wide.
C. Action.
The Commissioner of Labor and Industry by this directive and a letter to the Regional Administrator for Region III of Federal OSHA is relinquishing enforcement jurisdiction over the Radford Arsenal and Radford Army Ammunition Plant, Radford, Virginia to Federal OSHA effective on the issuance date of this directive. This action is taken in accordance with Section 4(d) of VOSH’s 1981 Operational Agreement with Region III and STP 2.14.
D. Background.
The question of State occupational safety and health jurisdiction over private employers operating government property has been a recurrent one. The Virginia Attorney General’s Master List of the
Jurisdictional Status of Federal Enclaves in Virginia (p. 40) states that the Radford Arsenal is an “exclusive” Federal enclave and that the Radford Army Ammunition Plant is a combination of “exclusive” and “proprietary” Federal Jurisdiction.
In a decision by the U. S. District Court in Minnesota, Minnesota v. Federal Cartridge Corp., 6 OSHC 1287 (D. Minn. 1977), it was noted that the state’s occupational safety and health statute did not extend jurisdictional coverage to a private contractor on a Department of Defense installation which was designated as an “exclusive” Federal enclave. (Note: Case law indicates that on “proprietary” Federal enclaves, VOSH can exercise jurisdiction when not preempted by Federal law or in conflict with Federal purposes).
In response to the Federal Cartridge Corp. case, Federal OSHA issued STP 2.14 which provides that a state plan can relinquish jurisdiction over an “exclusive” Federal Enclave to Federal OSHA by notifying
the Regional Administrator and filing a State Plan Change. In addition, VOSH’s 1981 Operational Agreement with Region III provides in Section 4(d) that Federal OSHA’s responsibility under the OSH Act of 1970 continues to be retained for “enforcement on any Federal enclave where the State cannot
--- Page 2 ---
obtain entry, including National Parks and Department of Defense Installations.” (VOSH cannot effectively “gain entry” to the Radford Arsenal and those portions of the Radford Ammunition Plant that are “exclusive” since VOSH does not have any jurisdiction in “exclusive” Federal enclaves).
Case law and Operational Agreement clearly dictate that VOSH must relinquish jurisdiction over the Radford Arsenal and those portions of the Radford Army Ammunition Plant that are “exclusive.” VOSH has also chosen to relinquish jurisdiction to the “proprietary” portions of the Ammunition Plant, since a detailed examination of the acquisition records (deed, comprehensive land plat, etc.) for the
portion of the federal reservation to be inspected would have to be conducted before each inspection.
The potential for confusion and loss of valuable time in responding to the complaint would only be to the detriment of the safety and health of the Plant workers and conflict with the purposes of the OSH Act of 1970.
ATTACHMENT: Virginia Attorney General’s Master List of the Jurisdictional Status of Federal Enclaves in Virginia (p. 40)
DISTRIBUTION: Commissioner of Labor and Industry Assistant Commissioner of VOSH VOSH Technical Services Director Directors and Supervisors
Compliance Safety and Health Staff Voluntary Compliance and Training Staff OSHA Regional Administrator, Region III
Virginia Right to Work RegulationsDoc ID: Division
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
CHAPTER SIX RIGHT TO WORK
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Revised March 2010 Right to Work – Page 2
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
March 2010 Right to Work – Page 3
- 00 Right-to-Work Law
A. Coverage
Virginia’s Right-to-Work Law is set forth in §§ 40.1-58 through 40.1-69 of the Code of Virginia and applies to both private and public industry employees (40.1-58.1).
B. Summary
Virginia is one of twenty-one states with a Right-to-Work Law. Under Section 14(b) of the National Labor Relations Act (NLRA)Virginia exercised its option to adopt a “right to work” law.
The law prohibits a closed shop, where employers may hire only members of the contracting union, and a union shop, where the employee who is not a member of a union must join after a certain period of employment and must remain a member as a condition of employment, even if a union is the NLRB-certified representative of employees at a company.
Under the statute, the right to work cannot be denied or abridged an individual on account of membership or nonmembership in a labor union or organization and an employer cannot require employees to become or remain members of a labor union nor require that dues or fees be paid to a union or labor organization as a condition of employment.
Any person required to join a union or denied employment in violation of Virginia’s right-to-work law is entitled to recovery from the employer, and from any person or union acting in concert with the employer, any damages sustained by reason of denial or deprivation of employment. Employees adversely affected as a result of any violation or threatened violation of the right-to-work law are also entitled to injunctive relief and to recover damages from violators. Violation also constitutes a Class 1 misdemeanor.
C. Exemptions
The Virginia Right-to-Work Law does not apply to the following
-
Railroads and airlines. The labor relations activities of these industries are governed by the Railway Labor Act. This Act created a National Mediation to conduct elections to determine whether or not workers want union representation and to mediate disputes that arise during contract negotiations. The National Railroad Adjustment Board provides procedures for settling disputes in the railroad industry arising out of grievances or the application of contracts. Inquiries form employees, employers, or other interested person should be referred to the National Mediation Board.
-
Federal enclaves with exclusive jurisdiction. Exclusive jurisdiction can only be gained by Acts of the General Assembly. When the Commonwealth deeds Right to Work – Page 4
property to the federal government, exclusive jurisdiction is not a given. Rather, the federal government must ask the General Assembly for exclusive jurisdiction which can only be granted by Acts of Virginia’s General Assembly. The right-to-work law does prevail on federal properties having either “concurrent” or “proprietary” jurisdiction.
D. National Labor Relations Act and National Labor Relations Board
- Summary
The National Labor Relations Board (NLRB) is an independent federal agency established to enforce the National Labor Relations Act. As an independent agency, they are not part of any other government agency such as the Department of Labor. Basically, the NLRB has two functions:
(1) To prevent and remedy unfair labor practices, whether committed by labor organizations or employers.
(2) To establish, usually by secret ballot elections, whether or not certain groups of employees wish to be represented by labor organizations for collective-bargaining purposes.
The NLRB is organized into two major parts: the five-member Board itself, which has its own staff, and the Office of the General Counsel. The Board Members and the General Counsel are appointed by the President with the consent of the Senate. Their offices are located in Washington, D.C. In addition, the agency maintains field offices in major cities across the nation.
- National Labor Relations Act Preemption Doctrine
As a general rule, the state is preempted from enforcing allegations of unfair labor practices and must refer such complaints to the NLRB. There are certain exceptions, however. For example, the state may investigate and enforce its law prohibiting any agreement “requiring membership in a labor organization as a condition of employment.”
Whenever the federal labor law regulates an area which the state also regulates, the state law is preempted by the federal law. Section 101 of Title 29 of the United States Code states: “The interest in a uniform national labor policy clearly outweighs any recognized interest in state regulation. Hence, subject to certain exceptions discussed below, state statutes are pre-empted by federal labor law wherever the two areas overlap.” In San Diego Building Trades Council vs Garmon, 395 U.S. 236 (1959) it was ruled “If an activity is even arguably regulated or protected by federal law, the states have no jurisdiction to regulate that activity.” Therefore, the general rule is that any allegation of an unfair labor practice must be referred to NLRB. Right to Work – Page 5
Exemptions to Preemption Doctrine
1. Statutory Exemptions
(1) State limitations on union security agreements: The exception to the preemption doctrine which allows states to enforce their Right-to-Work Laws is set forth in Section 29 U. S. Code Section 164(b) of the National Labor Relations Act and reads as follows:
“Nothing in this Chapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment and in any State or Territory in which such execution or application is prohibited by State or Territorial law.”
Therefore, if we receive a complaint alleging that an employer and a union have entered into an agreement which creates a “union shop” (where employees must join the union after securing employment), or an “agency shop” (where employees must pay dues and initiation fees to the union, but need not join), we must investigate and enforce the Right-to-Work Law without regard to the NLRB. A closed shop (where employees must be union members before they are hired) is outlawed under both federal and state law.
(2) Where NLRB refuses to exercise jurisdiction: Section 14(c) of the 1959 Landrum-Griffin Amendment provides that state courts or state agencies may exercise jurisdiction over activities as to which the NLRB has declined jurisdiction because of an insubstantial effect on commerce. DOLI will only accept complaints alleging violations of the provisions of the Virginia Right-to-Work Law.
Other allegations would have to be pursued by the claimant’s attorney through the courts.
(3) Damages for unlawful strikes or boycotts: Under Taft-Hartley section 303, suits to recover damages for certain types of unlawful strikes or boycotts may be brought in state court --- even though the activity is also an unfair labor practice under federal law. DOLI will only accept complaints alleging violation of the provisions of the Virginia Right-to-Work Law. Other allegations would have to be pursued by the claimant’s attorney through the courts.
(4) Action for breach of collective bargaining contract: Likewise, Taft-Hartley section 301 permits suit for breach of a collective bargaining agreement in either federal or state court --- whether or not the breach-of-contract claim also constitutes a federal unfair Right to Work – Page 6
labor practice. DOLI will only accept complaints alleging violation of the Virginia Right-to-Work Law. Other allegations would have to be pursued by the claimant’s attorney through the courts.
2. Judicial Exemptions
(1) Matters of overriding local concern: The Supreme Court has carved out an exception to the preemption doctrine to permit state regulation of conduct which “touches interests deeply rooted in local feeling and responsibility. ”
(2) Matters of “peripheral” federal concern: The Supreme Court has also stated that the preemption doctrine does not apply where the matter is of only “peripheral” (minor) concern to federal labor policy.
(3) Matters where state regulation will promote, rather than impede, federal labor policy: The Supreme Court also has disregarded the preemption doctrine where the particular rule of law invoked in state court is so structured that state regulation would promote, rather than interfere with, federal labor policy.
(4) Union duty of fair representation: A union’s failure to represent all of its members fairly is an unfair labor practice under the NLRA. However, the NLRA does not preempt duty-of-fair-representation suits by union members in state courts. In such cases, the state court applies federal substantive law under section 301 of the NLRA, augmented by state remedial law. The union’s duty of fair representation is so fundamental that Congress did not intend to oust state courts of jurisdiction. Instead, concurrent state jurisdiction and state remedies should be preserved where they promote this goal of the NLRA.
Note: Complaints under these judicial exemptions to the preemption doctrine would only be accepted by DOLI if allegations of violations of Virginia’s Right-to-Work statute exist.
Other allegations would have to be pursued by the claimant’s attorney through the courts.
E. Employees Wishing to Withdraw from the Union
Sole jurisdiction of NLRB.
F. Case Assignment
-
Regional, Field, or Central Office staff person receives complaint. Right to Work – Page 7
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The claimant should be requested to write a letter documenting all information regarding the allegations.
-
Representative should review claim with Supervisor prior to commencing investigation. Supervisor should bring claim to the attention of designated Central Office staff person. All Right-to-Work complaints are considered significant cases and should be coordinated by Supervisor with Central Office.
G. Investigation
-
Interviews complainant.
-
Interviews employer, union management, etc.
-
Interviews co-workers, witnesses, if necessary.
-
Reviews records where deductions have been made for union dues, etc.
-
Reviews policies regarding union and nonunion membership.
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Requests employer and/or union official to provide proof to claim of exclusive jurisdiction on a federal enclave.
-
If doubt exists concerning NLRB jurisdiction, contact one of NLRB’s Field Offices for clarification.
H. Case Disposition
Central Office staff person will advise affected parties (complainant, employer, union official) of what determination DOLI has made in the case, and what action has to be taken as a result of the determination.
Individual Liability for Wage ClaimsDoc ID: Individual
--- Page 1 ---COMMONWEALTH of VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY C. Ray Davenport Main Street Centre COMMISSIONER 600 East Main Street, Suite 207 Richmond, Virginia 23279
PHONE (804) 371-2327
FAX (804) 371-6524
MEMORANDUM TO: Wendy Inge, Director Division of Labor and Employment Law en Po oe ees Law — FROM: C. Ray Deve Sect Commissioner DATE: April 6, 2015
SUBJECT: INDIVIDUAL LIABILITY FOR WAGE CLAIMS POLICY
PURPOSE In furtherance of the Department's mission to make Virginia a better place to work, live and conduct business, the following policy is being adopted to assure to the fullest extent of the law that employees in the Commonwealth receive full compensation for the wages they have earned.
POLICY Determining whether an owner of a corporation (i.c., shareholder) or a corporate officer is an "employer" for purposes of collecting wages due employees is important, especially when the traditional employer (e.g., corporation, partnership) appears to have little or no assets that could be used to make employees whole (e.g., the company is closed, in bankruptcy or preparing for bankruptcy, or in severe financial difficulties).
During the course of the wage claim investigation, Investigators will gather information to determine whether there is reasonable cause to believe that the owner or one or more corporate officers were acting in such a manner as to support a finding that they should be held individually liable for unpaid wages.
--- Page 2 ---When such a finding of individual liability is made, the Division of Labor and Employment Law will issue the appropriate findings and orders to both the "traditional employer" and the corporate officer(s) for the wages owed. Proposed civil penalties for failure to pay wages will only be issued to the "traditional employer".
The following language will be added, as appropriate, to Department correspondence with
corporate employers informing them of the potential for individual liability of corporate officers
for unpaid wages: "For purposes of collecting unpaid wages from an employer on behalf of an employee, an individual business owner or corporate officer may be considered an “employer” under Virginia law and may be held personally liable for the unpaid wages in certain circumstances. In these instances, if the wages are not paid, DOLI will enter Final Orders against both the business and the appropriate individual."
NOTE: It is well-established in case law that, in addition to corporate officers, managers, supervisors and other individuals may also be subject to individual liability for wage claims under certain circumstances. While this policy does not currently include "managers, supervisors and other individuals" within its scope, the Commissioner reserves the right to revise this policy in future to expand its scope to include those classes of individuals.
NOTE: This policy may be applied retroactively to current open investigations and previously closed investigations that are reopened at the discretion of the Commissioner or his designated representatives.
NOTE: To the extent that this Policy conflicts with current policies or procedures in the Labor and Employment Law Field Operations Manual, this Policy shall take precedence.
LEGAL BACKGROUND
Va. Code § 40.1-2. Definitions, defines the term "employer"
"Employer" means an _ individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy doing business in or operating within this Commonwealth who employs another to work for wages, salaries, or on commission and shall include any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. (Emphasis added).
The above highlighted language tracks wording from the definition of "employer" contained in
§203 of the Fair Labor Standards Act (FLSA)
(d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
2
--- Page 3 ---Therefore, it is appropriate to look to judicial rulings established under federal law as a guide for interpreting the Virginia statute. | Substantial legal authority holds that the definition of “employer” under the FLSA is not limited to the common law concept of employer, but is given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes. See Boucher v. Shaw, 572 F. 3d 1087 (9" Circuit 2009); Donovan v. Agnew, 712 F. 2d 1509 (1* Circuit 1981): The overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages. See, e.g., Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (Sth Cir.1983), cert. denied, --- U.S. ----, 103 S.Ct. 3537, 76 L.Ed.2d ---- (1983); Marchak v. Observer Publications, Inc., 493 F.Supp. 278, 282 (D.R.1.1980); Brennan v. Whatley, 432 F.Supp. 465, 469 (E.D.Tex.1977);
Hodgson v. Royal Crown Bottling Co., 324 F.Supp. 342, 347 (D.Miss.1970), affd, 465 F.2d 473 (5th Cir.1972); Schultz v. Chalk-Fitzgerald Construction Co., 309 F.Supp. 1255 (D.Mass.1970); cf. Chambers Construction Co. v. Mitchell, 233 F.2d 717, 724-25 (8th Cir.1956) (corporate officer within definition of "employer"; therefore trial judge did not abuse discretion in making injunction run against him personally). Personal liability has been found even against a corporate officer who lacks an ownership interest in the corporation, Sabine Irrigation Co., Inc., supra, 695 F.2d at 194-95; or who has minimal ownership interest, Usery v. Weiner Bros., Inc., 70 F.R.D. 615, 617 (D.Conn.1976).
In Chao y. Hotel Oasis, Inc., 493 F. 3d 26 (1* Circuit 2007), the court noted that not every manager or supervisor is potentially liable for unpaid wages and identified certain factors that are important for individual liability analysis: Under the FLSA, an "employer" is "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). The First Circuit has followed the Supreme Court's lead in interpreting this definition pursuant to an “economic reality" analysis. Donovan v. Agnew, 712 F.2d 1509, 1510 (1st Cir. 1983) (citing Goldberg v. Whitaker, 366 U.S. 28, 33 (1961)). Accordingly, there may be multiple "employers" who are simultaneously liable for compliance with the FLSA. Id.;
Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998).
In Donovan v. Agnew, we acknowledged that "[t]he overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." 712 F.2d at 1511 (collecting cases). Although we found it "difficult to accept .. . that Congress intended that any corporate officer or other employee with ultimate operational control over payroll matters be personally liable,” id. at 1513 (emphasis added), we narrowly determined that the FLSA did not preclude personal liability for "corporate officers with a significant ownership interest who had operational control of significant aspects of the corporation's day to day functions, including compensation of employees, and who personally made decisions to continue operations despite financial adversity during the period of nonpayment," id. at 1514. (Emphasis added). 3
--- Page 4 ---We next visited the issue of an individual's personal liability under the FLSA for corporate employment practices in Baystate Alternative Staffing, 163 F.3d 668. There, the Department of Labor's Administrative Review Board had held two corporate officers and managers personally liable for FLSA violations because "they had the authority to manage certain aspects of the business's operations on a day-to-day basis." Id. at 678.
Noting our concern in Agnew that not every corporate employee who exercised supervisory control should be held personally liable, we identified several factors that were important to the personal liability analysis, including the individual's ownership interest, degree of control over the corporation's financial affairs and compensation practices, and role in "caus[ing] the corporation to compensate (or not to compensate) employees in accordance with the FLSA." Id. (Emphasis added).
FACTORS TO BE CONSIDERED
Investigators should gather evidence addressing the following factors identified in well-
established case law
- The identities of the owner and/or corporate officer(s) who exercised operational control
over significant aspects of the company's day to day functions.
-
Determine the individual's ownership interest in the company, if any.
-
Determine whether the individual had control over the company's financial affairs and
compensation practices.
- Determine whether the individual maintained employment records.
5 Did the individual have the power to hire and fire employees?
-
Did the individual have the ability to determine the rate and method of payment?
-
Determine whether the individual made decisions to continue operations despite financial
adversity during the period of nonpayment of wages.
- Determine whether the individual had a role in causing the company to compensate or not
compensate employees leading to nonpayment of wages.
NOTE: As with any payment of wage violation, there must be a finding that the "employer" knowingly failed to pay wages in accordance with Va. Code §40.1-29.A.2. Accordingly, in order to charge a corporate officer, manager, supervisor or other individual with personal liability, evidence must be gathered to support a finding that the person knew of the failure to pay wages to the employee(s).
4
--- Page 5 --- DOCUMENTATION SOURCES During the course of the wage claim investigation, Investigators will gather information from many different sources to determine potential individual liability:
e Personal interviews with employees, supervisors, managers and corporate officers
e Employment contracts
e Letters of offers of employment
e Personnel files
e Copies of paychecks
e Timesheets/hourly records of employment
e Company emails and other company documents
e Information on the structure and corporate responsibilities of individual corporate officers gathered from company websites, social networking sites, etc.
e State Corporation Commission (SCC) records
In those instances where cooperation from the company or corporate officer is not forthcoming, the Investigator shall consult with the Director of the Division of Labor and Employment to determine whether the use of an administrative subpoena and interrogatories under Va. Code §40.1-6(4) is needed to complete the investigation. The Division of Legal Services will be available to provide support in preparing the administrative subpoena/interrogatory.
DETERMINATION OF INDIVIDUAL LIABILITY
In determining whether the owner and/or corporate officer should be held personally liable for unpaid wages, the list of factors above is not all-inclusive and no one factor may be determinative. Following are examples of situations where courts have found liability’:
e Company president found personally liable where she hired and fired employees, set work hours, directed work activities, had the authority to set wages and had ultimate authority over business decisions that led to FLSA violations
e Company president had "continuous contact” over payroll and other personnel matters
e Company president served as the general manager, chairman of the boards and owned 80% of the company stock; he participated in the overall supervision of the company as well as in many day-to-day functions
- Whose Liability is tt Anyway, ABA Section of Labor and Employment Law, 5" Annual Labor and Employment Law Conference, Seattle, WA, November 4, 2011 5
2007 Safety Interpretations OverviewDoc ID: 2007
2007 SAFETY INTERPRETATONS
TABLE OF CONTENTS
OSHA AND VOSH…………………………………………………………………………..2
VOSH CONSULTATION PROGRAM……………………………………………………2
POWERED INDUSTRIAL TRUCKS AND TRAINING…………………………………3
RECORDKEEPING AND REPORTING REQUIREMENTS…………………………...5
NOISE EXPOSURE STANDARD AND HEARING PROTECTION…………………...6
FIRE DEPARTMENTS AND HAZWOPER………………………………………………7
HAZWOPER and Updates…………………………………………………………..7
Minimum Number of Haz-Mat Technicians………………………………………..7
PERSONAL PROTECTIVE EQUIPMENT (PPE)………………………………………..7
Contaminated Personal Protective Equipment (PPE)……………………………..8
PPE and Eyewear…………………………………………………………………….8
Respiratory Protection Standard……………………………………………………9
Respirators and Facial Hair…………………………………………………………9
FELLING TREES…………………………………………………………………………...9
IMPALEMENT HAZARDS………………………………………………………………...9
FALLS……………………………………………………………………………………….10
ROOFS AND FALL PROTECTION……………………………………………………...10
BULLDOZERS……………………………………………………………………………...11
OVER THE ROAD VEHICLES…………………………………………………………...11
ROLL OVER PROTECTION……………………………………………………………...11
TRAILER CREEP AND TRAILER PULL……………………………………………….11
TRAFFIC CONTROLS…………………………………………………………………….11
ACCESS AND EGRESS: EXIT SIGNS…………………………………………………..12
CONFINED SPACES (HEADBOX PITS)………………………………………………...12
EYEWASH STATIONS…………………………………………………………………….12
RESIDENTIAL CONSTRUCTION……………………………………………………….13
WET FLOORS………………………………………………………………………………14
VETERINARIANS………………………………………………………………………….14
MATERIAL SAFETY DATA SHEETS (MSDS)…………………………………………14
SMOKING IN THE WORKPLACE………………………………………………………15
LIFTING AND CARRYING……………………………………………………………….15
TOILET FACILITIES AT BUILDING SITES (PORTABLE TOILETS)……………...15
FOOD SANITATION……………………………………………………………………….16
HEAT STRESS………………………………………………………………………………16
FIRST AID…………………………………………………………………………………...16
ERGONOMIC RULES……………………………………………………………………...17
MICROWAVE OVENS……………………………………………………………………..17 1
OSHA AND VOSH
The Virginia Occupational Safety and Health (VOSH) Program has adopted most of the federal OSHA identical standards, including the federal identical 1910.119 Process safety management, 1910.146 Permit required confined spaces, 1910.151 Medical and first aid (including paragraph (c) eyewash requirements), and the 1904 Recordkeeping standards. VOSH follows all guidance and interpretations issued by federal OSHA in the applying these standards. The VOSH Program does have some standards which are unique to Virginia. To view these unique standards, see the Department’s website: http://www.doli.virginia.gov/infocenter/publications/vaunique_p1.html.
Under an agreement with federal OSHA, VOSH is a state-plan OSHA program. VOSH has no jurisdiction over federal agencies, such as the United States Postal Service. Federal OSHA's Norfolk Area Office may be contacted at (757) 441-3820. Complaints may also be filed online via the Federal OSHA website: http://www.osha.gov/as/opa/worker/complain.html.
OSHA's Compliance Assistance Quick Start introduces employers and employees, especially those at new or small businesses, to compliance assistance resources on their website: www.osha.gov/dcsp/compliance_assistance/quickstarts/index.html.
For resources to assist small business employers, also see OSHA's Small Business website: www.osha.gov/dcsp/smallbusiness/index.html.
The Labor Laws of Virginia under Section 40.1-51.1A, Code of Virginia, require that:
It shall be the duty of every employer to furnish to each of his employees safe employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, and to comply with all applicable occupational safety and health rules and regulations promulgated under this title.
The VOSH Program inspection system is designed to provide maximum feasible protection and ensure that worst situations are inspected first. Top priority is given to responding to reports of imminent danger situations. Second priority is given to investigation of catastrophes resulting in a fatality or fatalities and/or hospitalization of three or more employees. Third priority is given to employee complaints of violation of standards or of unsafe or unhealthful working conditions.
Next in priority are planned inspections of high-hazard industries or occupations.
Persons wishing to file complaints may contact the Department’s Regional Office that is nearest to the workplace. For more information, see the Department’s website: www.doli.virginia.gov .
The website also contains a complaint form (click on the link for File a Complaint).
VOSH CONSULTATION PROGRAM
The VOSH Consultation Program provides on-site consultation to help employers identify and correct potential safety and health hazards. To learn about the VOSH Consultation Program, see the Department’s website: www.doli.virginia.gov . 2
POWERED INDUSTRIAL TRUCKS AND TRAINING
OSHA neither certifies nor endorses any type of training. Training requirements are explained in 29 CFR 1910.178(l). An employer who has not properly trained an employee who is an industrial truck operator is in direct violation of this standard. Employers handle the certification.
Below is an excerpt from the General Industry Standard.
(l) Operator training (1) Safe operation. (i) The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (l). (ii) Prior to permitting an employee to operate a powered industrial truck (except for training purposes), the employer shall ensure that each operator has successfully completed the training required by this paragraph (l), except as permitted by paragraph (l)(5). (2) Training program implementation. (i) Trainees may operate a powered industrial truck only: [A] Under the direct supervision of persons who have the knowledge, training, and experience to train operators and evaluate their competence; and [B] Where such operation does not endanger the trainee or other employees. (ii) Training shall consist of a combination of formal instruction (e.g., lecture, discussion, interactive computer learning, video tape, written material), practical training (demonstrations performed by the trainer and practical exercises performed by the trainee), and evaluation of the operator's performance in the workplace. (iii) All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence. (3) Training program content. Powered industrial truck operators shall receive initial training in the following topics, except in topics which the employer can demonstrate are not applicable to safe operation of the truck in the employer's workplace. (i) Truck-related topics: [A] Operating instructions, warnings, and precautions for the types of truck the operator will be authorized to operate; [B] Differences between the truck and the automobile; [C] Truck controls and instrumentation: where they are located, what they do, and how they work; [D] Engine or motor operation; [E] Steering and maneuvering; [F] Visibility (including restrictions due to loading); [G] Fork and attachment adaptation, operation, and use limitations; [H] Vehicle capacity; [I] Vehicle stability; 3 [J] Any vehicle inspection and maintenance that the operator will be required to perform; [K] Refueling and/or charging and recharging of batteries; [L] Operating limitations; [M] Any other operating instructions, warnings, or precautions listed in the operator's manual for the types of vehicle that the employee is being trained to operate. (ii) Workplace-related topics: [A] Surface conditions where the vehicle will be operated; [B] Composition of loads to be carried and load stability; [C] Load manipulation, stacking, and unstacking; [D] Pedestrian traffic in areas where the vehicle will be operated; [E] Narrow aisles and other restricted places where the vehicle will be operated; [F] Hazardous (classified) locations where the vehicle will be operated; [G] Ramps and other sloped surfaces that could affect the vehicle's stability; [H] Closed environments and other areas where insufficient ventilation or poor vehicle maintenance could cause a buildup of carbon monoxide or diesel exhaust; [I] Other unique or potentially hazardous environmental conditions in the workplace that could affect safe operation. (iii) The requirements of this section. (4) Refresher training and evaluation. (i) Refresher training, including an evaluation of the effectiveness of that training, shall be conducted as required by paragraph (l)(4)(ii) to ensure that the operator has the knowledge and skills needed to operate the powered industrial truck safely. (ii) Refresher training in relevant topics shall be provided to the operator when: [A] The operator has been observed to operate the vehicle in an unsafe manner; [B] The operator has been involved in an accident or near-miss incident; [C] The operator has received an evaluation that reveals that the operator is not operating the truck safely; [D] The operator is assigned to drive a different type of truck; or [E] A condition in the workplace changes in a manner that could affect safe operation of the truck. (iii) An evaluation of each powered industrial truck operator's performance shall be conducted at least once every three years. (5) Avoidance of duplicative training. If an operator has previously received training in a topic specified in paragraph (I)(3) of this section, and such training is appropriate to the truck and working conditions encountered, additional training in that topic is not required if the operator has been evaluated and found competent to operate the truck safely. (6) Certification. The employer shall certify that each operator has been trained and evaluated as required by this paragraph (l). The certification shall include the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation. (7) Dates. The employer shall ensure that operators of powered industrial trucks are trained, as appropriate, by the dates shown in the following table. 4 If the employee was hired: The initial training and evaluation of that employee must be completed: Before December 1, 1999 By December 1, 1999.
After December 1, 1999 Before the employee is assigned to operate a powered industrial truck. (8) Appendix A to this section provides non-mandatory guidance to assist employers in implementing this paragraph (l). This appendix does not add to, alter, or reduce the requirements of this section.
RECORDKEEPING AND REPORTING REQUIREMENTS
VOSH has adopted the Federal identical 1904 recordkeeping standard, which requires employers to evaluate workplace injuries and record injuries requiring medical treatment on OSHA Form 300. If the employer is unsure whether an injury has occurred, the employer may refer the employee to a physician or other health care professional to determine whether there was an injury and if there is work-relatedness. OSHA recordkeeping standards provide that, in cases in which there is any question, the doctor or other health care professional's opinion will be the deciding factor. If the employee's injury is work-related and requires treatment other than first aid, it must be recorded on OSHA Form 300. To view the OSHA Recordkeeping Handbook, see the OSHA website, www.osha.gov, and click on the "r" at the site index at the top of the page.
The Virginia Administrative Code, 16VAC25-80-10 (1910.20), Access to employee exposure and medical records, is Virginia’s counterpart to Federal OSHA's 1910.1020, Access to employee exposure and medical records standard. The purpose of the standard is to provide employees and their designated representatives a right of access to relevant exposure and medical records, e.g. environmental (workplace) monitoring, biological monitoring, material safety data sheets (MSDS), etc. An exemption from maintaining records required in 1904 does not mean that an employer is exempt from the requirements in 16VAC25-80-10 or 1910.1020.
For more information on the recordkeeping standard, see the Federal OSHA website: http://www.osha.gov/recordkeeping/index.html.
An employer who had more than ten employees at any time during the previous calendar year must keep OSHA injury and illness records, unless the business is classified as a partially exempt industry under 1904.2. Appendix A of the standard has a list of establishments which have been partially exempted from recordkeeping requirements. Partial exemptions are based on Standard Industrial Classification (SIC) codes. For example, a civil engineering firm that is primarily engaged in providing professional land surveying services, the standard industrial classification code (SIC) is 873. If a company's SIC code falls within the 873 industry group, it is considered a partially exempt industry. Such a company is not required to keep OSHA 300 records unless asked to do so by the Bureau of Labor Statistics. If an establishment has been asked by the Bureau of Labor Statistics (BLS) to maintain records, the partial exemption does not apply. All employers, even those who are partially exempt from recordkeeping requirements, must report any workplace incident that results in a fatality or the hospitalization of three or more employees.
Listed below are the standards which were most frequently cited by Federal OSHA for this SIC during the period October 2004 through September 2005. 5 Standard # Cited Description
19100178 4 Powered industrial trucks. 19100037 3 Maintenance, safeguards, and operational features for exit
routes. 19100132 3 General requirements. 19260095 3 Criteria for personal protective equipment. 19040039 2 Recordkeeping, failure to report fatality 19260501 2 Duty to have fall protection. 19260652 2 Requirements for protective systems. 19260021 1 Safety training and education. 19260701 1 General requirements 19261053 1 Ladders.
There is additional information about these standards at OSHA's website: www.osha.gov. In addition, the Virginia Department of Labor and Industry offers consultation services to help employers better understand and voluntarily comply with the VOSH standards. For more information about the Department’s consultation services, see: http://www.doli.virginia.gov/whatwedo/coop_prog/consultation.html.
NOISE EXPOSURE STANDARD AND HEARING PROTECTION
VOSH has adopted the federal OSHA identical 1910.95 Occupational noise exposure standard, which is applicable to all private and public sector workplaces, including places of entertainment and educational institutions. Employers must take appropriate measures to protect their employees who are exposed to excessive noise levels. To learn more, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=19093 .
The requirement for hearing protection is based on the level of noise to which employees are exposed, but it is not based solely on whether an employee has a standard threshold shift. To determine employees' noise exposure while using any type of equipment, measurements must be taken with a sound level meter. If sound level readings indicate that employees' noise exposure exceeds the permissible noise exposure levels in Table D-2 of the standard, and there are no feasible administrative or engineering controls to reduce the employees' noise exposure below these levels, then hearing protection must be provided. 1910.95(b)(1) requires that whenever feasible administrative or engineering controls fail to reduce sound to levels specified in Table G-16 of the standard, all exposed employees must be given, and must use, hearing protection to reduce the sound to permissible exposure levels. This applies to all employees in work areas where noise exposure exceeds the levels in Table G-16. In addition, employees exposed to an eight-hour Time Weighted Average (TWA) noise level of 85 dBA or greater, who have experienced a standard threshold shift, must be given, and must use, hearing protectors with sufficient attenuation to reduce noise levels below 85 dBA. See 1910.95(b)(1) and 1910.95(i)(2).
See the OSHA website: http://www.osha.gov/SLTC/noisehearingconservation/index.html.
If a physician determines that a standard threshold shift is work-related or further aggravated by an employee's noise exposure in the workplace, the employer must pay for any referrals that are 6 for the purpose of further identifying the effects of occupational noise exposure. For more information, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=22593 .
FIRE DEPARTMENTS AND HAZWOPER
The training requirements of 1910.120 depend on the duties to be performed by an employee during an emergency. Paragraph (q) of 1910.120 requires different levels of training based on an employee’s assigned role. The required training and competencies for each level of emergency response are described in detail in paragraph (q)(6) of the final rule: (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=976 5).
The training curriculum guidelines are found in Appendix E of the standard: (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977 0). If the Virginia Department of Fire Programs’ training courses cover the suggested training curriculum guidelines for the particular response level, they meet the HAZWOPER training requirements. A list of training courses offered by the Virginia Department of Fire Programs is included on their web site: http://www.vdfp.state.va.us/training.htm.
HAZWOPER and Updates
VOSH has adopted the OSHA identical 1910.120 HAZWOPER standard. To view the OSHA interpretation which addresses lapsed training, see their website: www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21 062.
The duration of a HAZWOPER training class can be adjusted. A full 40 hour course may not be necessary if the employee can demonstrate competency in the required topics. The individual's retention of the information must be considered. A pre-test may help to make this assessment.
The person’s prior work experience in the hazardous waste industry should also be considered. If the employee is assigned to a new site, at a minimum, the employer would be required to have training specific to that site.
Minimum Number of Haz-Mat Technicians
The 1910.120 HAZWOPER standard does not have a requirement for a minimum number of Haz-Mat technicians who must be on the scene of a Haz-Mat incident. However, there is a requirement in the 1910.134 respiratory protection standard, under paragraph (g)(3), that at least one standby employee must be located outside when employees enter an IDLH atmosphere.
PERSONAL PROTECTIVE EQUIPMENT (PPE)
The OSHA/VOSH standards for Personal Protective Equipment (PPE) are found in 1910.132 through 138. Section 1910.132(d) requires employers to select PPE for their employees based on 7 an assessment of the hazards in the workplace and the hazards the employees are likely to encounter. The standard does not list specific qualifications for the individual who conducts the hazard assessment. However, it would be expected that the individual conducting the assessment would be familiar with the unique work operations and hazards present at that particular work site. Furthermore, that individual should be knowledgeable in the selection of the appropriate PPE that would protect employees from the hazards identified in the hazard assessment.
Employers are required to provide appropriate personal protective equipment (PPE’s), such as gloves, to employees. For information on enforcement of the Bloodborne Pathogens standard, see section XI.C. Multi-Employer and Related Worksites in OSHA's compliance directive entitled “Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens:” http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2570
#XI.
The U.S. General Accounting Office (GAO) recommends hospitals have a three day supply of PPE. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) may have requirements for PPE’s. For more information, see their website: www.jointcommission.org/.
Contaminated Personal Protective Equipment (PPE)
Contaminated personal protective equipment (PPE) is addressed in Section 1910.1030 (d)(3)(iv) of the Bloodborne Pathogen Standard. Home laundering by employees is not permitted since the standard requires the laundering to be performed by the employer at no cost to the employee.
Other types of contaminated laundry, i.e. linens and non-PPE items, are addressed in Section 1910.1030(d)(4)(iv). The standard allows on-site laundry of linens if the requirements in this section of the standard are met. For more on the Bloodborne Pathogens standard, see OSHA’s directive, “Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens:” http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2570 For further information, see also: http://www.osha.gov/SLTC/bloodbornepathogens/index.html .
PPE and Eyewear
Employers are required by 1910.133 to ensure that employees use appropriate eye protection when exposed to eye hazards such as flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation. The design, construction, testing, and use of devices for eye protection must comply with the American National Standard for Occupational and Education Eye and Face Protection, Z87.1-1968. To view a copy of this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977 8 . Additional information about eye protection can be found at this OSHA Safety and Health Topics web page: http://www.osha.gov/SLTC/eyefaceprotection/index.html .
OSHA’s Eye and face protection standard, 1910.133, requires protective eye devices purchased after July 5, 1994 to comply with ANSI Z87.1-1989, "American National Standard Practice for Occupational and Educational Eye and Face Protection." The Eye and face protection standard can be found on OSHA’s website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977
- 8 Any replacement lenses or frames for safety glasses marketed as ANSI approved must comply with the ANSI standard. If another type of lens is used, the ANSI approval becomes void.
Respiratory Protection Standard
The OSHA Respiratory Protection standard 1910.134, under paragraph (e)(2) requires employers to utilize a physician or other licensed health care professional (PLHCP) to perform medical evaluations to determine an employee's ability to use a respirator. The PLHCP may use the medical questionnaire in Appendix C of the standard (or an equivalent) or an initial medical examination. The standard defines a PLHCP as "...an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide, or be delegated the responsibility to provide, some or all of the health care services required by paragraph (e) of this section." This certification is made by the Board of Medicine. Medical doctors and nurse practitioners are the only PLHCPs allowed by the Board to perform such medical evaluations. To view this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=127 16.
Respirators and Facial Hair
The standard states that employers cannot permit respirators with tight-fitting facepieces to be worn by employees whose facial hair comes between the sealing surface of the facepiece and the face (where the respirator seal contacts the face). Facial hair must not protrude under the respirator seal, or extend far enough to interfere with the device's function (such as interference with valve function). For Federal OSHA’s interpretation of this issue, see their website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=19355.
FELLING TREES
In Virginia, the logging standards (see 29 CFR 1910.266) apply to arborists when the felling of trees is involved. To view this standard, go to www.osha.gov and click on "Standards" on the right of the webpage. In addition, arborists are required to comply with the basic hearing protection and eye protection standard.
IMPALEMENT HAZARDS
The only impalement hazards addressed by 29 CFR 1926.701(b) are those from rebar. The standard, 29 CFR 1926.701(b), states: "all protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement." The key words are "to eliminate the hazard of impalement." Exposure to impalement is always a consideration when employees are working above rebar or other sharp protrusions. The critical element when evaluating any job activity is the recognition or identification of impalement hazards and the exposure to employees. As you know, construction activities constantly change and contractors must remain aware of, and provide protection from, or alternative work practices to eliminate, 9 impalement hazards. Exposure to impalement from rebar or other sharp protrusions is a recognized hazard in the construction industry.
Section 1926.25 and the General Duty clause generally requires protection from impalement hazards posed by other sharp objects
Section 1926.25(a) (Housekeeping) addresses impalement hazards from debris, including protruding nails in form and scrap lumber by requiring employers to keep the worksite clear of these.
With respect to impalement hazards not covered by that section, the General Duty Clause (Section 5(a)(1)) of the Occupational Safety and Health Act) requires employers to furnish a workplace that is free from recognized hazards which may cause or are likely to cause death or serious physical harm. Under the General Duty Clause, employers are required to protect employees exposed to the hazard of impalement on sharp objects. Where a lightning rod poses a recognized hazard of impalement and a there is a feasible means of protection, the employer is required to provide that protection.
In situations where horizontal rebar is situated in such a way that a worker could trip and fall into it and become impaled, protection would have to be provided.
Horizontal rebar that is close to ground level would not normally pose such a hazard. An OSHA response of March 24, 1995 stated that reinforcing steel bent to a horizontal position, with the bended portion 6 inches above grade, would not constitute an impalement hazard and would meet the requirement of 29 CFR 1926.701(b).
With regard to the distance reinforcing steel can protrude before guarding is required, or to the diameter of a protruding object, rebar of any length or diameter must be guarded when there is the hazard that an employee could fall onto the bar and be impaled (skin pierced). There is no further direction as to what this diameter is.
FALLS
If the slope in question is quite steep -- for example, steep enough that the person could not stop the fall from continuing, it is probably safe to take the position that it is a "fall." If you look at the definition of "free fall," it is not described as a fall unrestricted by anything at all. Instead, the definition is "the act of falling before a personal fall arrest system begins to apply force to arrest the fall." If the slope is sufficient to stop the free fall early enough (equal gradient from the surface to the bottom) then no fall protection is needed. VOSH has not designated a specific angle.
ROOFS AND FALL PROTECTION
A roof is considered an open sided floor. Alternative means of fall protection are discussed in 1926 and not in 1910. While this standard does not apply to GI, using these recommended methods of fall protection would allow a worker within 6 feet of the edge of a roof that does not have the required guardrail or parapet wall. 10
BULLDOZERS
There are no specific training or certification requirements that address the use of a bulldozer.
However, under 29 CFR §1926.21, employers are required to "instruct each employee in the recognition and avoidance of unsafe conditions...." this would certainly be interpreted to mean that an employer shall ensure that all operators of a bulldozer know how to safely use all aspects of this equipment and that a proper legible operator's manual be available for review before and during operation.
OVER THE ROAD VEHICLES
OSHA does not handle the safety of over the road vehicles. Questions concerning such vehicles should be directed to the Federal Motor Carrier Safety Administration at: http://www.fmcsa.dot.gov/about/contact/who-to-contact/contactus.htm
ROLL OVER PROTECTION
Virginia has adopted the federal identical standard for Roll Over Protection (ROPS). We do not require ROPS for agricultural tractors manufactured before Oct. 25, 1976. ROPS is certainly a very crucial safety element, but even more crucial is use of the seat belt with ROPS. The ROPS protection alone is not enough.
TRAILER CREEP AND TRAILER PULL
Trailer creep and trailer pull away have long been recognized as a problem in dock operations.
A number of companies manufacture vehicle restraints to prevent trailer movement. If restraint systems are not used, trailers must be properly chocked to prevent movement as required in OSHA standards 29 CFR 1910.178(k)(1) and 29 CFR 1910.178(m)(7). To prevent accidents, employers must set safe work practices for employees involved in trailer-to-dock operations, and enforce those rules consistently. An employer must have a system to ensure that truck drivers do not pull away while powered industrial trucks are loading or unloading. "Chocks" as it appears in the OSHA standard 29 CFR 1910.178(k)(l) is a grammatical construction only, and does not mean that OSHA would require the placing of multiple chocks to prevent a truck and trailer from moving. One chock should fully satisfy the intent of the safety regulation if it effectively prevents movement of the truck during loading operations involving powered industrial trucks.
TRAFFIC CONTROLS
OSHA and VOSH both recognize the Manual on Uniform Traffic Control Devices as acceptable guidance. Specifically, "during short-duration work, there are hazards involved for the crew in setting up and taking down traffic controls. Also, since the work time is short, the time during which motorists are affected is significantly increased as the traffic control is expanded.
Considering these factors, it is generally held that simplified control procedures may be warranted for short-duration work. Such shortcomings may be offset by the use of other, more dominant devices such as special lighting units on work vehicles. 11 Mobile operations are work activities that move along the road either intermittently or continuously. Mobile operations often involve frequent short stops, each as much as 15 minutes long, for activities such as litter cleanup, pothole patching, or utility operations and are similar to stationary operations. Warning signs, flashing vehicle lights, flags, and/or channelizing devices should be used."
In addition, there is NO shortcut for fall protection. Personnel changing lights must have suitable fall protection while elevated in an aerial boom.
ACCESS AND EGRESS: EXIT SIGNS
The illumination of exit signs is governed by 29 CFR 1910.37 from the General Industry Standards, which states that:
(6) Every exit sign shall be suitably illuminated by a reliable light source giving a value of not less than 5 foot-candles on the illuminated surface. Artificial lights giving illumination to exit signs other than the internally illuminated types shall have screens, discs, or lenses of not less than 25 square inches area made of translucent material to show red or other specified designating color on the side of the approach.
No definition of "reliable" is listed. If the employer has, for example, gone to the trouble of "backing up" the electrical system with a solar generator that "automatically" comes on when power is off, that would generally be considered a good faith effort made to follow this standard.
CONFINED SPACES (HEADBOX PITS)
A confined space must meet three criteria. First, the space must have limited or restricted means of egress. Second, it must be large enough and so configured that an employee can bodily enter to perform assigned work. Third, it must not be designed for continuous employee occupancy. A Headbox Pit can be a "confined space" (as defined in 1910.146) if it is accessed by ladder, but installation of fixed industrial stairs (if they are complaint with 1910.24) makes the Headbox Pit no longer a "confined space," because it no longer meets the criteria of limited or restricted means of egress. Also, a space cannot be a "permit space" unless it is also a "confined space."
However, even for a "confined space," the inherent hazards of the material flowing through any pipes passing through the space do not have to be considered in the permit space determination if the pipes do not terminate at end use equipment, and there is no reason to believe there is a reasonable probability of a rupture or leak where the contents of the piping would cause a serious safety or health hazard.
EYEWASH STATIONS
The OSHA/VOSH standard, 1910.268(b)(2)(i), is specific for those operations which involve measuring storage battery specific gravity or handling electrolyte. All other operations where an employee's eyes or body could be exposed to injurious corrosive materials would be covered under 1910.151(c). Please also see 1910.268(a)(3). 12 The relevant source for guidance in protecting employees who may be exposed to injurious corrosive materials is the American National Standard for Emergency Eyewash and Shower Equipment, ANSI Z358.1, specifically the ANSI Standard Z358.1-1998 "Emergency Eyewash and Shower Equipment," which provides guidance for eyewash stations. Plumbed units should be activated weekly to flush the line and verify operation. These units must be tested annually to verify conformance with the ANSI Z358.1 compliance. For self-contained systems, users should refer to the manufacturer's instructions.
The OSHA/VOSH standards are silent on required water temperature for eyewash and shower stations. In addition, 1910.151(c) does not provide specific instruction regarding the frequency of inspecting eyewash stations. However, the 1998 version of ANSI Z358.1 recommends the water be "tepid" but does not give a specific temperature range. In general, water temperatures in the range 27°-35°C (about 80°-95°F) are considered suitable with temperatures in the higher part of the range if extended periods of eye irrigation or showering are required. Tepid water must not exceed 38° C (100° F). A chemical splash should be rinsed for at least 15 minutes but, rinsing time can be up to 60 minutes. The water temperature should be one that can be tolerated for the required length of time. Water that is too cold or too hot will inhibit workers from rinsing or showering as long as they should. In addition, water that is too hot worsen skin or eye damage caused by the accidental exposure to the chemical. In some cases, the heat of the water may also cause a chemical reaction. Employers may want to consult with a physician for further advice.
Copies of ANSI standards may be obtained by contacting ANSI at
American National Standards Institute, Inc. 11 West 42nd Street New York, New York 10036 Phone: (212) 642-4900
RESIDENTIAL CONSTRUCTION
STD 3-0.1A defines "residential construction" in section VIII, paragraph A.1. It states that OSHA considers an employer to be engaged in residential construction "where the working environment, materials, methods and procedures are essentially the same as those used in building a typical single-family home or townhouse." Paragraph A.2 clarifies that residential construction is characterized by "wood framing (not steel or concrete), wooden floor joists and roof structures," and methods by "traditional wood frame construction techniques."
Under this definition, the compliance directive applies where the structure as a whole -- not just the part associated with a particular construction activity -- is typical of residential construction.
This is made clear in paragraph A.3, in which the directive states that a "discrete part of a large commercial building, (not the entire building), such as a wood frame, shingled entranceway to a mall, may fit within the definition . . ." Under this paragraph, where the construction of the entire entranceway is characteristic of residential construction, it may be covered by the directive.
However, where only one part of the entranceway is built with residential-type materials and methods, such as the roof, the directive is inapplicable. For instance, an apartment constructed with precast concrete floors, structural steel, or other materials that are not traditionally used in stick frame home construction would not be considered residential construction and would be 13 beyond the scope of STD 3-0.1A. The installation of wood roof trusses on an apartment constructed with precast concrete floors, structural steel, or other materials that are not traditionally used in stick frame home construction would be beyond the scope of STD 3-0.1A.
STD 3-0.1A has not been interpreted to mean that it covers any stick-built roofing system, regardless of what the rest of the structure is made of and how it is constructed.
Commercial/industrial projects typically are not within the scope of STD 3-0.1A unless their structure is similar to that of a typical residential home. STD 3-0.1A addresses the hazards faced by workers doing specific activities in a working environment of questionable structural stability and where work positioning equipment is typically not present.
WET FLOORS
There are no regulations that address placement of wet floor signs. OSHA only addresses the condition of the flooring. The appropriate standard from 29CFR1910.22 is below.
- 22(a)(2)
The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable.
VETERINARIANS
There are no VOSH/OSHA standards specific to veterinary medicine. The practice of veterinary medicine is covered by the 1910 General Industry standards. The 1910 standards that would be applicable depend on hazards specific to each worksite. Some hazards frequently found in veterinary services are covered by the following regulations: Formaldehyde (1910.1048), Hazard Communication (1910.1200), Personal Protective Equipment (1910.132), and Electrical (1910.305). OSHA’s website lists the most frequently cited standards for veterinary services: http://www.osha.gov/pls/imis/citedstandard.sic?p_esize=&p_state=FEFederal&p_sic=0742 .
For more information, see: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=21470 .
In addition, to view the 1910 General Industry standards, see OSHA's web site: www.osha.gov .
MATERIAL SAFETY DATA SHEETS (MSDS)
Maintenance of material safety data sheets (MSDS) is governed by the federal identical Hazard Communication standard, 1910.1200. The MSDS must be resubmitted if the MSDS is updated or changed to contain new or significant information about a chemical's hazards. These provisions are detailed in section (g)(7) of the Hazard Communication Standard. OSHA has interpreted the MSDS availability requirement to allow the use of computers, telefax or any other means, as long as a readable copy of the MSDS is available to workers while they are in their work areas, during each workshift. Employees must have access to hard copies of the MSDSs. In the event of medical emergencies, employers must be able to immediately provide copies of MSDSs to 14 medical personnel. For more information, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=22627 and http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=20004 .
Information regarding the requirements for an MSDS sheet can be found on the Federal OSHA web site: http://www.osha.gov/SLTC/hazardcommunications/index.html.
SMOKING IN THE WORKPLACE
There are currently no federal OSHA or Virginia Occupational Safety and Health (VOSH) regulations concerning smoking in the workplace, except for instances where a fire or explosion could result from their improper use, e.g. use of flammable solvents. There are some state laws regulating smoking under some conditions. For information on these rules, see the following website: http://leg1.state.va.us/cgibin/legp504.exe?000+cod+TOC15020000028000000000000.
The Virginia Safety and Health Codes Board adopts regulations under instruction from the Virginia General Assembly. The Board has not, at this time, been instructed by the General Assembly to adopt a regulation regarding secondhand smoke. In the 2005 General Assembly Session legislation was proposed, Senate Bill 1191, to prohibit smoking in most buildings or enclosed areas frequented by the public. However, this bill was defeated. Information on this bill is available via the following URL link: http://leg1.state.va.us/cgi-bin/legp504.exe?ses=051&typ=bil&val=sb1191.
LIFTING AND CARRYING
There are currently no Federal or Virginia regulatory standards which limit how much a person may lift or carry. However, the National Institute for Occupational Safety and Health (NIOSH), has developed a mathematical model to help predict the risk of injury based on the weight being lifted, as well as accounting for many factors. The model is based on medical research into the compressive forces needed to cause damage to bones and ligaments in the back. Information on the Revised NIOSH Lifting Equation can be found on the NIOSH website listed below. It should be noted however, that the NIOSH criteria are not mandatory. In addition, for employees of nursing homes, OSHA's Guidelines for Nursing Homes may be helpful.
OSHA: www.osha.gov/SLTC/ergonomics/index.html NIOSH: www.cdc.gov/niosh/topics/ergonomics/default.html#lift
TOILET FACILITIES AT BUILDING SITES (PORTABLE TOILETS)
The Virginia Occupational Safety and Health (VOSH) Construction Standard for Sanitation requires employers to provide toilet and handwashing facilities for employee use. A copy of this standard is available on the Department’s website: http://www.doli.virginia.gov/infocenter/publications/va_unique/16vac25-160.pdf.
To report conditions which impact employee safety and health at the workplace, contact the 15 Department's Regional Office which is nearest to the worksite.
The use of portable toilets is acceptable in the following circumstances: (1) the lack of water or temporary nature of the installation makes water carriage systems impracticable; (2) the portable toilets are readily accessible by employees; (3) the portable toilets have adequate lighting, are secure, and have heating as necessary; and (4) they are well-maintained and properly serviced.
Hand-washing facilities must be provided in all situations.
FOOD SANITATION
The Virginia Occupational Safety and Health (VOSH) program does not have jurisdiction over matters involving food sanitation. For matters involving food sanitation, contact the Virginia Department of Health regarding the interpretation of the State's Health Department regulations. (http://www.vdh.state.va.us/oehs/food/index.htm)
HEAT STRESS
OSHA/VOSH has no specific regulations regarding heat stress, but we recognize the importance of protecting employees from exposure to weather/extreme temperatures when these are health or safety hazards. OSHA provides guidance (which VOSH endorses) on recognition, evaluation, and control of heat stress hazards, and appropriate compliance actions. For information on heat stress, see the OSHA website: http://www.osha.gov/SLTC/heatstress/index.html. Information about heat and sun hazards can also be found on websites of the Centers for Disease Control and Prevention: http://www.bt.cdc.gov/disasters/extremeheat/index.asp and the National Institute for Occupational Safety and Health: http://www.cdc.gov/niosh/topics/heatstress/http://www.osha.gov/SLTC/heatstress/standards.html.
Although VOSH has no specific regulations on heat stress hazards, the General Duty Clause requires each employer to, "furnish to each of his employees safe employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." VOSH uses the General Duty Clause to cite employers who expose employees to potential serious physical harm from excessively hot work environments. Citations for General Duty Clause violations are issued only if there is no specific OSHA/VOSH standard that addresses the recognized hazard and if the four components of the provision are present. The four components are: 1) the employer failed to keep the workplace free of a "hazard;" 2) the hazard was "recognized," by the cited employer or by the employer's industry generally; 3) the recognized hazard was causing or likely to cause death or serious physical harm; and 4) there was a feasible means available to eliminate or materially reduce the hazard.
FIRST AID
The Virginia Occupational Safety and Health (VOSH) Program’s jurisdiction only extends to matters regarding occupational safety and health in the workplace. VOSH requirements for first aid training only apply in situations when first aid is administered to employees who suffer an injury or illness at the workplace. The OSHA website lists the Guidelines for First Aid Training Programs that are used to evaluate first aid training in the context of workplace inspections: 16 www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1568.
Although they may be similar, the VOSH first aid training requirements do not apply in situations when first aid is administered to non-employees, such as children in day care facilities.
Children in day care facilities are not employees and are not covered by VOSH regulations. To learn about specific training requirement criteria for administering first aid to children in day care facilities, contact the Virginia Department of Social Services' Child Care Licensing Section at 1-800-543-7545 or visit their web site at www.dss.virginia.gov.
ERGONOMIC RULES
Neither federal OSHA nor the Virginia Occupational Safety and Health (VOSH) Program has a specific ergonomic standard. The VOSH Program may cite employers for ergonomic hazards under the General Duty Clause and/or issue ergonomic hazard alert letters where appropriate. For more information, see the OSHA website: http://www.osha.gov/SLTC/ergonomics/index.html.
MICROWAVE OVENS
Neither OSHA nor the VOSH Program has specific standards that regulate microwave ovens.
OSHA regulates exposure to nonionizing radiation in its General Industry standard, 29 CFR 1910.97. This standard specifies that worker exposure to nonionizing radiation not exceed 10 mW/cm2 in the frequency range 10 MHz to 100 GHz (defined in the standard as radio frequency/microwave radiation). The VOSH Program has adopted the same requirement under its State plan. When applicable, the VOSH Program would address compliance with the 1910.97 Nonionizing radiation standard during the course of these inspections.
All new microwave ovens produced for sale in the United States must meet the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) performance requirements in Title 21, CFR, Part 1030.10. This requirement states that new ovens may not leak microwave radiation in excess of 1 mW cm2 at 5 cm from the oven surface. It also states that ovens, once placed into service, may not leak microwave radiation in excess of 5 mW cm2 at 5 cm from the oven surface. The "Procedure for Field Testing Microwave Ovens" (HEW Publication (FDA) 77-8037) is the standard method for verifying that these oven performance criteria are met. Various nonionizing radiation survey meters are used to evaluate microwave exposure. The frequency ranges covered by OSHA's instruments are: 10 Hz to 300 kHz, 0.5 MHz to 6000 MHz, 6 GHz to 40 GHz, and the 2.45 GHz microwave oven frequency. These instruments are capable of measuring the electric field strength (E-field), magnetic field strength (H-field), or both depending on the instrument. If an employer is not found in compliance with the 1910.97 Nonionizing radiation standard, that employer could be subject to VOSH citations which may carry monetary penalties. For more information, contact the FDA/CDRH: Food and Drug Administration Center for Devices and Radiological Health 5600 Fishers Lane Rockville, Maryland 20857-001 Telephone: 1-888-INFO-FDA (1-888-463-6332); website: www.fda.gov/default.htm 17
First Aid Providers and Bloodborne Pathogens StandardDoc ID: 06-002
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VOSH PROGRAM DIRECTIVE: 06-002 ISSUED: August 15, 2000
SUBJECT: Designated First Aid Providers - Applicability of Bloodborne Pathogens Standard in General Industry
A. Purpose.
This directive transmits to VOSH field personnel an interpretation of the applicability of the bloodborne pathogens standard to the issue of designated first aid providers in General Industry.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to
the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel.
C. Reference.
Not Applicable.
D. Cancellation.
Not Applicable.
E. Action.
The Commissioner, Directors and Managers shall ensure that field personnel understand and comply with the interpretation and application of the standard as detailed in this directive.
F. Effective Date.
August 15, 2000.
G. Expiration Date.
Not Applicable.
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H. Background.
VOSH interprets §1910.151(b), concerning first aid requirements for employers in the absence of an infirmary, clinic or hospital in near proximity to the workplace if emergency rescue services are not available within a 3 - 4 minute response time, to require employers to provide employees first aid training and to designate at least one employee per work location and work shift to render first aid in response to an accident.
VOSH also interprets the following General Industry Standards to require employers to provide employees with first aid training, and to designate at least one employee per work location and work shift to render first aid in response to an accident.
-
§1910.266(i)(7), concerning first aid requirements for employees engaged in logging operations (all logging employees and supervisors are required to be trained and therefore designated to provide first aid; with the exception that day laborers working for arborists do not have to be trained in first aid if they are not using machinery and are just doing clean-up work).
-
§1910.269(b), concerning first aid requirements for power transmission workers (see §1910.269(b)(1) for specific number of employees required to be trained, and therefore designated).
Employees designated under the above standards to provide first aid are covered by the Bloodborne Pathogens Standards, §1910.1030. See VOSH Program Directive 02-400A, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard, 1910.1030, for citation policy.
[NOTE: VOSH will not cite an employer when a designated first aid response fails to render proper first aid, or refuses to render first aid in response to an “exposure incident” as defined in §1910.1030(b).]
Jeffrey D. Brown Commissioner
Attachment: None.
Distribution: Commissioner of Labor and Industry Chief Deputy Commissioner Directors and Managers VOSH Compliance Staff Cooperative Programs Staff Legal Support Staff OSHA Regional Administrator, Region III
2
Boiler and Pressure Vessel Safety ComplianceDoc ID: Boiler
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OPERATIONS MANUAL
BOILER AND PRESSURE VESSEL SAFETY COMPLIANCE
CHAPTER ONE: ORGANIZATION AND ADMINISTRATIVE
PROCEDURES [IN PREPARATION]
CHAPTER TWO: CERTIFICATE ISSUANCE [IN PREPARATION]
CHAPTER THREE: CERTIFICATE FEE AND ACCOUNTS RECEIVABLE
PROCESSING [IN PREPARATION]
CHAPTER FOUR: INSPECTION PROCEDURES
CHAPTER FIVE: VIOLATIONS [IN PREPARATION]
CHAPTER SIX: IMMINENT DANGER SITUATIONS [IN
PREPARATION]
CHAPTER SEVEN: PENALTIES
CHAPTER EIGHT: POST VIOLATION AND PENALTY ISSUANCE
PROCESSES
CHAPTER NINE: LEGAL PROCESS
Revision 1- Approved 10/99
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CHAPTER ONE: ORGANIZATION AND ADMINISTRATIVE
PROCEDURES
A. IN PREPARATION
B. Certificate of Inspection Extensions
The Virginia Code [16 VAC 25-50-150] allows an extension of inspection certificate for up to three additional months beyond a two month grace period following the expiration
of the Certificate of Inspection. The following describes how Owner/user requests for extensions of valid Certificates of Inspections are to be handled:
-
In service Inspector - The Inservice Certificate Inspector shall provide a current External Inspection Report. The report shall indicate the result of the inspection including testing of controls, and confirm that an extension is agreeable.
-
Boiler Compliance Inspector - Upon receipt of an acceptable External Inspection Report the appropriate Boiler Compliance Inspector or Chief Inspector will either phone or write to the Owner/user to explain the procedural requirements. The Owner/user shall provide a written request with the desired extended date and reason. A check for $20.00 for each object for each month
[maximum of 3 months] over the grace period shall be included with the written request. An extension is not needed as long as the required internal inspection is satisfactorily completed by the end of the grace period.
-
Office Supervisor Senior - The Office Supervisor Senior will maintain all of the following correspondence:
-
Satisfactory External Inspection Report.
- Owners/users written request for an extension.
-
Check for money to cover desired extension time.
-
Executive Secretary- The Executive Secretary shall prepare the letter to the
Owner/user extending the appropriate Certificates and obtain the Chief Inspector’s signature. The Executive Secretary will maintain a list of Owners/users with extended certificates maintain the file until the Certificate inspection [internal] has been received. Appropriate comments should be added to the comment line of the Master File.
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CHAPTER FOUR: INSPECTION PROCEDURES
A. Procuring of Certificate of Competency
Any person may apply for an examination for an Inspecto’rs Virginia Certificate of Competency. (See Exhibit A ). In order to qualify as a prospective National Board commissioned Inspector
(Exhibit C) an applicant shall have, as a minimum, a high school education (12 years or equivalent educational system) and shall meet the following requirements:
1. Credit Points Required
An applicant shall have a minimum of5 credit points accumulated under paragraphs (a) Education and (b) Experience, as follows:
a. Education (1 credit minimum, 4 credits maximum)
Category Credit Points
- Technical Training in Boiler and Pressure 1 Vessel Inspection (1 pt. maximum)
*Continuing Education: Having completed and received a passing grade in a training course in at least one (1) of the following (or related) subjects: quality assurance, engineering, fabrication methods, nondestructive examination or inspection. The training course(s) may be a correspondence course or conducted in a classroom.
*Code Courses: Completion of course on knowledge, understanding and general structure of the National Board Inspection Code or other codes or
related standards, as applicable.
*Other Courses: Completion of a course on procedures and techniques of auditing, and/or basic inspection methods.
- Technical Curriculum 2 Includes the following: a diploma from an accredited technical school Power Engineering Certificate Accredited Trade Certificate in such skills as a: Boilermaker, Mechanic, Steam Fitter, Machinist, Millwright, or Welder Evidence of completion of a military or merchant marine training course in the
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area of marine or stationary boilers or pressure vessels.
-
College/University 3 Includes the following: Associate ’s Degree in Science, Mathematics or Engineering Bachelor’s Degree in Science or Mathematics
-
College/University 4 Bachelor’s Degree in Engineering
b. Experience (1 credit minimum, 4 credits maximum)
Credit as shown for each full year’s technical associated with boilers and pressure vessels in the categories listed below.
Category Credit Points Each full year of experience
- Engineering, design 1 .
-
Manufacturing, including fabrication methods or 1 processes in either shop or field.
-
Responsible charge in the operation of boilers 1 exceeding 50,000 lbs. of steam per hour total
capacity.
-
Perform repair, alteration or maintenance of boilers 1 or pressure vessels.
-
Quality control systems related to boiler or pressure vessel 1 manufacturing, repair or alteration in either shop or field.
-
Inspection of boilers or present vessels either inservice or 1 during construction including either shop or field.
-
A NDE Level II examiner of boilers and pressure vessels 1
The examination fee is $50.00 payable to Treasurer of Virginia and sent to the Chief Inspector. Examinations are given four (4) times a year on the first Wednesday and Thursday of March, June, September and December. If the applicant’s education and experience meet the above requirements, a National Board written examination shall be
given dealing with the construction, installation, operation, maintenance, and repair of boilers and pressure vessels. The examination consists of 100 questions and is "open book".
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The first day will be five (5) mathematical questions and a weld procedure document review. The second day, there are fifty (50) multiple questions related to in-service inspections and the National Board Inspection Code.
The reference sources for all questions are the National Board Inspection Code, Section I-Power Boilers, Power Piping B31.1, Section IV - Heating Boilers, Section VIII Division 1-Unfired Pressure Vessels, Section IX-Welding and Section V-NDE.
The passing grade is 70% correct. After 90 days an applicant who fails an examination
may take another examination. Upon receiving notice of the grade from the National Board, the Commissioner may issue a Certificate of Competency and an identification card to:
-
An inspector who is employed full-time by a governmental authority having an authorized inspection agency as defined in Part I of the Boiler and Pressure Vessel Rules and Regulations.
-
An inspector who is employed by an insurance company authorized (licensed) to write boiler and pressure vessel insurance in this Commonwealth.
-
An inspector who is employed by a company that operates unfired pressure vessels
in Virginia and who has a valid owner/user inspection agency agreement as provided in Part II, Section 2.II of the Boiler and Pressure Vessel Rules and Regulations.
- A Contract Fee Inspector. ("Contract Fee Inspector" means any certified boiler inspector contracted to inspect boilers or pressure vessels on an independent basis
by the owner or operator of the boiler or pressure vessel).
The Chief Inspector or designee shall send a letter containing the examination results to any inspector who is not employed as described in the preceding paragraph.
B. Procuring a National Board Commission
Any person holding a Certificate of Competency and meeting the employment criteria found in the National Board Rules and Regulations may apply for a National Board
Commission in accordance with the Rules and Regulations.
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C. Procuring a Reciprocal Certificate of Competency
Inspectors who hold current National Board Commission and Work Cards shall request a Virginia Certificate of Competency and identification card on the appropriate application form (See Exhibit B). The completed applications shall be accompanied by, when applicable, a facsimile of the applicant’s National Board commission; current work card, other certificates of competency, and a processing fee of $20.00 payable to the Treasurer
of Virginia.
D. Renewals
Each person holding a valid Virginia certificate of competency and who conducts inspections may apply and obtain an identification card biennially, not later than June 30
of the year in which the certificate expires. A processing fee of $20.00 for each certificate, payable to the Treasurer of Virginia, shall accompany the application (See Exhibit B).
An unexpired Virginia identification card shall be returned when the certificate holder is no longer employed by the organization employing him at the time that the certificate was
issued or, in the case of a self employed contract fee inspector, has ceased inspection activities.
E. Revocation of a Certificate of Competency
A Virginia Certificate of Competency may be revoked or suspended by the Chief Inspector for any falsification found in any statement contained in the application for a Virginia Certificate of Competency. Written notice of intended revocation shall be given to the Inspector and his employer. The inspector shall have thirty (30) days from the receipt of written notice in which to respond in writing and/or schedule an informal hearing before the Chief Inspector. Persons whose certificate of competency has been revoked or suspended may, within 10 days from receipt of the decision, appeal to the
Safety and Health Codes Board. The inspector may be represented by legal counsel either before the Chief Inspector, or the Safety and Health Codes Board.
Under the above procedures, a Virginia Certificate of Competency may be revoked or suspended by the Chief Inspector for incompetence, untrustworthiness or falsification in any matter or statement contained in a report or certificate of inspection.
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CHAPTER SEVEN: PENALTIES
A. Penalties
- General Policy. The basis for requiring certification of objects is to ensure
compliance with the Boiler and Pressure Vessel Rules and Regulations established by the Board to protect human life and property from the unsafe or dangerous construction, installation, inspection, operation, maintenance and repair of such objects in the Commonwealth. The penalty structures under Title 40.1 of the Code of Virginia are not designed as punishment nor as a source of income for the Commonwealth.
a. The penalty structure is designed as an incentive to correct the failure to
(1.) obtain certification;
(2.) retain certification; or,
(3.) operate an object only at certified pressure levels.
These incentives are addressed towards the offending owner/operator and
towards other owner/users whose objects may have the same hazards or the same infractions of the certification requirements.
b. The penalty amounts should be sufficient to deter such violations, therefore, serve the intended public purpose. Criteria guiding
approval of such penalties by the Commissioner are based on meeting this public purpose.
c. The penalty structure outlined in this section is designed as a general guideline. If warranted, the Chief Inspector may deviate from this
guideline, with appropriate documentation, to achieve the
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appropriate deterrent effect.
- Civil Penalties
a. Statutory Authority. Virginia Code § 40.1-51.12(A) provides the Commissioner with the statutory authority to propose civil monetary penalties for operating a boiler or pressure vessel without an inspection certificate, or operating an object at a pressure exceeding that specified in such inspection certificate. Virginia Code § 40.1-51.12(A) provides that any owner/user who has received a notice of
penalty for an alleged violation of this provision may be assessed a civil penalty of up to $100 for each violation. Each day of unlawful operation shall be deemed a separate offense.
b. Exception. Local government and other state agencies shall not be assessed monetary penalties. Non monetary penalties shall be assigned by the Chief Inspector.
c. Penalty Schedule for Alleged Violations. The following penalty rate guidelines apply. Refer also to Section A.2.c. of this chapter for procedures for calculating the number of calendar days that will be used as a multiplier to the following daily penalty:
(1) Excessive Pressure
Operation of a boiler or pressure vessel at a pressure exceeding that specified in the object’s inspection certificate,
- $100 per day
(2) Lapsed Certificate - With No Inspection Non-conformances
Failure to pay the certificate renewal fee after the expiration
of the grace period and no installation, operational, or repair non-conformances were found as the result of an inspection -$ 100 per day.
(3) Suspended Certificate - With Inspection Non-
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conformances
Failure to correct installation, operational or repair non-conformances within the abatement period specified, found as the result of an inspection. Penalties will be levied if
corrections are not accomplished by the end of the abatement period which shall be a maximum of 60 days - $60 per day.
(4) No Certificate - No Inspection
Lapsed certificate and failure to secure an inspection - $100 per day.
(5) Lapsed Certificate - With Inspection Non-conformances
Failure to correct alleged installation, operational or repair non-conformances indicated in an inspection prior to the expiration of the statutory grace period - $60 per day.
(6) No Certificate - Multi-year Violation
Knowingly operating of an object on an ongoing annual basis 30 days following an inspection without obtaining a valid certificate - $100 per day .
Notwithstanding the guidelines provided above, at the discretion of the Asssistant Commissioner a greater penalty than that provided above up to a maximum of $100 per day may be proposed for a violation. Application of greater penalties shall be accompanied by the appropriate case file documentation, and the rationale for such action; e.g., achievement of an appropriate deterrent effect.
The minimum penalty assessed and payment due for the above rates in paragraphs 2 [b][2,3, 4, or 5] is $70.
c. Calculation of Penalty. The daily proposed penalty shall be
multiplied by the number of calendar days that the violation has
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continued unabated, except as provided below
(1) The number of days unabated shall be counted from the day following the abatement date specified in the notification. It will include all calendar days between that date and the date
of issuance of the violation.
(2) The maximum total proposed penalty shall not exceed ten times the daily proposed penalty for the first issuance of a violation to an owner/user; and twenty times the daily
proposed penalty for the second issuance for failure to abate the same violation, except where exceeding these amounts is deemed appropriate by the Chief Inspector AND Assistant Commissioner, and documented in the case file.
The Assistant Commissioner will coordinate collection activities between issuances. Copies of all case files of
unresponsive Owner/user shall be forwarded to the AssistantCommissioner within 60 days of each Final Order date. Contested case files shall be forwarded to the AssistantCommissioner within 30 days of notification. The Chief Inspector shall receive status reports on each unresponsive Owner/user monthly thereafter.
d. Penalties for Non-conformance Unless otherwise provided in this manual, the Chief Inspector will propose no penalties for an alleged physical or operational non-conformance if all three of the following criteria are met:
(1.) the owner/user has a valid certificate for the object;
(2.) operational pressure does not exceed that specified in the certificate; and
(3.) the owner/user immediately corrects or initiates steps to correct the infraction when informed of it by the inspector.
B. Notice of Penalty.
- Verification
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Prior to issuance of a Notice of Penalty, the operational status of a boiler or pressure vessel and the identity of the current owner/user shall be verified.
- Issuing Notice of Penalty.
a. Sending Notices to the Owner/user. Notices shall be sent by certified mail; hand delivery of notices to the owner/user or an appropriate agent of the same may be substituted for certified mailing if it is believed that this method would be more effective. A signed receipt shall be obtained whenever possible; otherwise the
circumstances of delivery shall be documented in the file.
- Amending or Withdrawing Notice of Penalty
a. Notice Revision Justified. The Chief Inspector or designee shall amend or withdraw a notice of penalty when:
(1) Administrative or technical error exists
(a) Reference to an incorrect standard or regulation.
(b) Incorrect or incomplete description of the alleged
violation.
(2) Additional facts establish a valid affirmative defense. (3) Additional facts establish a need for modification of the correction date, or the penalty, or reclassification of violation items.
b. Penalty Revision Not Justified. The Chief Inspector or designee shall not amend or withdraw a notice of penalty when:
(1) Valid notice of contest is received.
(2) The 15 working days for filing a notice of contest has expired and the penalty has become a final order.
(3) There is an interest in editorial and/or stylistic modifications.
c. Procedures for Amending or Withdrawing Penalties. The
following procedures are to be followed in amending or withdrawing
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penalties
(1) Withdrawal of or modifications to the penalty, shall normally be accomplished by means of an informal settlement agreement (ISA).
(2) Changes initiated by the Chief Inspector without an informal conference are exceptions. In such cases the procedures given below shall be followed:
(a) If proposed amendments to penalties change the
amount of the penalties, the original penalties shall be withdrawn and new, appropriate penalties issued.
(b) The amended Notice of Penalty Form shall clearly indicate that
(i) The period of contest of the amended penalties will begin from the day following the date of receipt of the amended Notice of Penalty; and
(ii) The contest period is not extended as to the unamended portions of the original penalty.
(c) A copy of the original Notice shall be attached to the amended Notice of Penalty Form when the amended form is forwarded to the owner/user.
(d) When circumstances warrant it, a penalty may be withdrawn in its entirety by the Chief Inspector.
Justifying documentation shall be placed in the case file. If a penalty is to be withdrawn, a letter withdrawing the Notice of Penalty shall be sent to the owner/user.
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CHAPTER EIGHT: POST VIOLATION AND
PENALTY ISSUANCE PROCESSES
A. Post-Notice of Penalty Processes.
- Informal Conferences
a. General. The owner/user may request an informal conference.
When an informal conference is conducted, it shall normally be conducted within the 15 working day contest period. If the owner/user's intent to contest is not clear, the Chief Inspector shall
attempt to contact the owner/user for clarification.
b. Procedures. Informal conferences may be held by any means practical. Documentation of the Chief Inspector's actions notifying the owner/user of the informal conference shall be placed in the case file.
c. Participation by Special Inspectors. The insurance company or contract fee inspector who made the inspection shall be notified of an upcoming informal conference and, if practicable, be given the opportunity to participate in the informal conference (unless the Chief Inspector anticipates that only a penalty adjustment will
result).
At the discretion of the Chief Inspector, one or more additional agency employees (in addition to the Chief Inspector) may be present at the informal conference. In cases in which proposed penalties total $50,000 or more, a second agency staff member shall
attend the informal conference.
d. Conduct of the Informal Conference. The Chief Inspector or designee shall conduct the informal conference in accordance with the following guidelines:
(1) Opening Remarks. The opening remarks shall include discussions of the following:
(a) Purpose of the informal conference. (b) Rights of participants.
(c) Contest rights and time restraints. (d) Limitations, if any.
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(e) Settlement of cases. (f) Other relevant information. (g) If the Chief Inspector states any views on the legal merits of the employer's contentions, it should be made clear that those views are personal opinions only and
are not legally binding on the Commonwealth.
(2) Closing. The main issues and potential courses of action shall be summarized at the conclusion of the discussion. It is appropriate to tape record the informal conference and to use the tape recording in lieu of written notes. A tape recording
may only be made with the written consent of all parties obtained before the meeting. A copy of the summary, and any other relevant notes or tapes of the discussion made by the Chief Inspector, shall be placed in the case file.
e. Decisions. At the end of the informal conference, the Chief
Inspector shall make a decision as to what action is appropriate in light of the facts brought up during the conference.
Changes to penalties, correction dates and the measures that will have to be taken to correct the condition normally shall be made by means of an informal settlement agreement and the reasons for such
changes shall be documented in the case file.
- Petitions for Modification of Correction Date (PMC). The owner/user may request additional time to correct a violative condition after the 15-working-day contest period has passed, provided that the following
procedures for PMCs are observed
a. Filing Date. A PMC must be filed in writing with the Chief Inspector no later than the close of the next working day following the date on which abatement was originally required.
(1) If a PMC is submitted orally, the owner/user shall be informed that an oral petition is not acceptable and that a written petition must be mailed within the end of the next working day after the correction date. If there is not sufficient time to file a written petition, the owner/user shall be informed of the requirements below for late filing of the
petition.
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(2) A late petition may be accepted only if accompanied by the owner/user's statement of exceptional circumstances explaining the delay.
-
Services Available to Owner/Users An owner/user requesting assistance in correcting violations shall be informed that the agency is willing to advise them even after penalties have been issued.
-
Guidance for Determining Final Dates of Settlements and Commissioner’s Orders
a. Notice of Penalty Not Contested. The Notice of Penalty and correction date becomes a final order of the Commissioner on the date the after 15- working-day contest period expires.
b. Notice of Penalty Resolved by Informal Settlement Agreement
(ISA). The ISA becomes final, with penalties due and payable, on the date of the last signature.
[NOTE: A later due date for payment of penalties may be set by the terms of the ISA.]
[NOTE: Settlement is permitted and encouraged by the Commissioner at any stage of the proceedings.]
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CHAPTER NINE: LEGAL PROCESS
A. Outline of Legal Process.
- After notice of contest is received and all required attempts at settlement have failed the Assistant Commissioner may authorize a request to issue summons. The Office of Legal Support will draft the request for issuance.
Legal Support will also arrange contact with the Commonwealth's Attorney in the jurisdiction where the violation occurred. A copy of the case file will be sent to the Commonwealth's Attorney.
-
The Attorney assigned to the case will contact the Commonwealth's Attorney to arrange a date to file the bill of complaint. The bill is filed with the Circuit Court Clerk who shall issue a subpoena to start the suit.
-
Attempts may be made to settle the case by the Office of Legal Support and
Compliance Division Director even after filing of the suit. If a settlement can not be reached the case will proceed to trial.
- Prior to trial both parties may engage in discovery as authorized by §40.1-49.4 L.2. of the Code of Virginia. Discovery may include the subpoena of the Inspector or Special Inspector's notes, findings, and
narrative.
-
Trial preparation will include at least one pretrial meeting between the Department ( Attorney, inspector and/or Chief Inspector) and the Commonwealth's Attorney.
-
The Commonwealth's Attorney will present the case on behalf of the Commissioner. The Commonwealth's Attorney will call the inspector as a witness to explain the events leading up to the notice of penalties.
-
After all testimony is heard at the trial the judge will issue an order
affirming, modifying or vacating the citation or proposed penalty.
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B. Appeals.
- General. Appeals from Circuit Court may be heard by the Virginia Court of Appeals. Should the Circuit Court Judge not decide any or all issues in a case in favor of the Department, the Commissioner has thirty days to file an
appeal with the Court of Appeals. Because of this time limitation the following procedures must be done in a timely manner.
- Legal Support Memorandum. After each trial the Legal Support Attorney who attended the trial in consultation with other agency personnel in attendance will prepare a memorandum outlining the results of the trial.
The memorandum will discuss the strengths and weaknesses of the case and the result and make a recommendation on the appeal.
a. The memo will be given to the Director of Legal Support by the fifth working day after the entry of the final order. A copy of this memorandum will be sent to the Assistant Attorney General.
b. The Director of Legal Support will review the memorandum and make a recommendation on appeal within three working days. This recommendation will be given to the Assistant Commissioner for review.
c. The Assistant Commissioner will make a final recommendation on the appeal to the Commissioner within three working days.
- Commissioner's Decision. The final decision on appealing the Judge's decision will be made by the Commissioner.
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18
Confined Space Standard for Insurance InspectorsDoc ID: Standard
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VOSH PROGRAM DIRECTIVE: 06-016A ISSUED: September 1, 1994
SUBJECT: Standard Interpretation: Applicability of Permit-Required Confined Space Standard for General Industry, §1910.146, to Insurance Companies Employing Boiler and Pressure Vessel Safety Inspectors
A. Purpose.
This directive transmits to field personnel VOSH Citation policy concerning the applicability of the Permit-Required Confined Spaces Standard for General Industry, §1910.146, to insurance companies employing boiler and pressure vessel safety inspectors.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program.
This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel and specifically to occupational health enforcement personnel.
C. References.
VOSH Field Operations Manual (FOM), Chapter XIX, Section D., Multi-Employer Worksites 58 Fed. Reg. 4462 (January 14, 1993)
D. Cancellation.
VOSH Program Directive 06-016 (Nov. 14, 1988).
E. Action.
Directors and Supervisors shall assure that the procedures outlined below are adhered to by enforcement personnel when citing 1910.146 in instances involving boiler and pressure vessel safety inspectors for insurance companies.
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F. Effective Date.
September 1, 1994
G. Expiration Date.
Not Applicable.
H. Background.
CHANGE I: At the request of representatives from the insurance industry and boiler and pressure vessel inspectors, a meeting was held on August 30, 1988, attended by representatives from the insurance industry, inspectors, and the Department. Members of the Safety and Health Codes Board attended as observers. As a result of the meeting the Commissioner has approved this standard interpretation which addresses the concerns of the interested groups and conforms to guidelines in the VOSH Field Operations Manual.
CHANGE II: On June 21, 1993, the Safety and Health Codes Board deleted applicability of the Virginia Confined Space Standard to general industry and adopted the federal identical Permit-Required Confined Spaces Standard, §1910.146.
I. Summary/ General Policy Guidelines.
-
The Department of Labor and Industry will recognize written contracts made between insurance companies and owner-users of boiler and pressure vessels regarding the provision of attendants and emergency equipment as required by 1910.146, when the procedures listed in K. are followed.
-
Although an employer cannot contract away safety and health responsibilities, the Department does recognize that those responsibilities may be met in a number of different ways on a multi-employer worksite.
-
The Department will enforce 1910.146 in situations involving owner-users of boiler and pressure vessels and insurance inspectors in the same manner that it enforces other standards on multi-employer worksites.
J. Scope of Interpretation. This interpretation covers only those entries where 1910.146 requires an attendant. A confined space is a space that:
- Is large enough and so configured that an employee can bodily enter and perform assigned work; and
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-
Has limited or restricted means for entry or exit; and
-
Is not designed for continuous employee occupancy.
The permit-required confined space means a confined space that has one of the following characteristics:
-
Contains or has a potential to contain a hazardous atmosphere;
-
Contains a material that has the potential for engulfing an entrant;
-
Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or
- Contains any other recognized serious safety or health hazard.
K. Citation Procedures on multi-employer worksites involving owner-users of boiler and pressure vessels and insurance Inspectors.
-
Situations involving boiler and pressure vessels where one or more of the hazards mentioned in J. is present are usually both created and controlled by one employer (the owner-user) while an employee of another employer (the insurance company inspector) may become exposed to the hazard in the normal course of work (inspecting the boiler or pressure vessel).
-
In situations such as the one described in K.1., both employers have responsibility for the safety and health of their employees.
-
In a multi-employer worksite situation, the employer who neither creates or controls the hazard can avoid liability for a violation only by taking steps which are reasonable under the circumstances to protect their employees against the hazardous condition.
When a host employer arranges to have employees of another employer (contractor) perform work that involves permit space entry, the Permit-Required Confined Spaces standard requires the host employer to inform the contractor that the workplace contains permit spaces, elements of the hazards, necessary precautions or procedures the host has implemented and that permit space entry is allowed only through compliance with a permit space program. The host employer must also debrief the contractor at the conclusion regarding hazards confronted. Contractors also have a duty to obtain available information regarding permit space hazards and entry operations from the host employer and to coordinate entry operations with the host employer.
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-
To encourage the correction or avoidance of hazards in a situation such as that described in K.1. (see also J.), the Department will recognize a written contractual arrangement between owner-users and insurance companies as a reasonable means of achieving compliance with 1910.146 (see J., Scope of Interpretation). The written contractual agreement shall be executed before the insurance inspector enters the boiler and pressure vessel.
-
The written contractual agreement must comply with the requirements of 1910.146 and must be rigidly adhered to by both parties. The insurance companies' actions, not the owner-users, will guide VOSH decisions regarding responsibility when an employee of the insurance company is exposed to the hazard. The same rule applies to the owner-user when an employee of the owner-user is exposed to the hazard.
If the owner-user breaches the contract and fails to protect the insurance companies employees, it will be the insurance company's responsibility to assure that its employee refuses to conduct an inspection until the contract is followed (or provides satisfactory alternative means to protect the employee from the hazard as described in K. 3. above). Where the owner-user provides no attendants or rescue equipment, the inspector shall not enter the boiler or pressure vessel without first assuring the presence of a qualified attendant and emergency equipment.
Theron J. Bell Commissioner
Attachments: Initial Determination Flowchart for §1910.146
Hazards on Multi-employer Worksites Checksheet for Issuance of Citations
Distribution: Commissioner of Labor and Industry Directors and Supervisors Consultation Services Staff Training Staff OSHA Regional Administrator, Region III
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7
Virginia Silica Exposure Control ProgramDoc ID: 14-410
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DOLI VOSH Virginia Occupational Safety & Health
VOSH PROGRAM DIRECTIVE: 14-410 ISSUED: February 24, 2021
Subject National Emphasis Program on Crystalline Silica
Purpose This directive transmits to field personnel policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures to respirable crystalline silica (RCS) in general industry, maritime, and construction. The NEP targets specific industries expected to have the highest exposures to RCS.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program.
Certification This Program Directive is considered to meet the definition of “guidance document” contained in a §2.2-4101 of the Code of Virginia: “any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.”
Notwithstanding the issuance date of this Program Directive, and in accordance with §2.2-4002.1.B of the Code of Virginia, this Program Directive has been or will be subject to a 30-day public comment period, to include public comment through the Virginia Regulatory Town Hall website, after publication in the Virginia Register of Regulations and prior to its effective date.
Notwithstanding the issuance date of this Program Directive, and in accordance with §2.2-4002.1.C of the Code of Virginia, if a written comment is received during a public comment period asserting that the guidance document is contrary to state law or regulation, or that the document should not be exempted from the provisions of this chapter, the effective date of the guidance document by the agency shall be delayed for an additional 30-day period. During this additional period, the agency shall
respond to any such comments in writing by certified mail to the commenter or by posting the response electronically in a manner consistent with the provisions for publication of comments on regulations provided in this chapter. Any person who remains aggrieved after the effective date of the final guidance document may avail himself of the remedies articulated in Article 5 (§ 2.2-4025 et seq.).
Scope This Directive applies VOSH-wide. This directive applies to all VOSH personnel.
[TABLE 1-1] | DOLI | | Virginia Occupational Safety & Health | VOS | |
DOLI | DOLI | | | | VOS |
[/TABLE]
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References OSHA Instruction CPL-03-00-023 (February 04, 2020)
Cancellation OSHA Notice CPL 03-00-007, Cancellation of CPL 03-00-007, National Emphasis Program - Crystalline Silica, October 26, 2017
Effective Date April 15, 2021
Action Directors and Managers shall ensure that policies and procedures established in this Directive are uniformly enforced and field personnel understand and comply with the requirements included in this Directive.
C. Ray Davenport Commissioner
Attachment: OSHA Instruction CPL 03-00-023 (February 4, 2020); or refer to: https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-023.pdf
Distribution: Commissioner of Labor and Industry Director of Cooperative Programs Assistant Commissioner VOSH Compliance & Cooperative Programs Staffs VOSH Directors and Managers OSHA Region III & OSHA Norfolk Area Offices VOSH Legal Support & IMIS Staffs
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if, and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
OSHA VOSH
Federal Agency State Agency
Agency Department
Regional Administrator Assistant Commissioner – Programs
Area Director Regional Director VOSH Program Director
Area Office/Regional Office Regional Office
Regional Solicitor Attorney General or VOSH Office of Legal Support (OLS)
Office of Statistics VOSH Research and Analysis
29 CFR VOSH Standard
Compliance Safety and Health Officer (CSHO) CSHO and/or Industrial Hygienist
OSHA Field Operations Manual (FOM) VOSH Field Operation Manual (FOM)
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OSHA Directives: VOSH Program Directives
OSHA Instruction CPL 02-02-080, Inspection 02-412, VOSH Inspection Procedures for the
Procedures for the Respirable Crystalline Silica Respirable Crystalline Silica Standards (04/15/21) Standards, June 25, 2020. or its successor
OSHA Instruction CPL 02-00-051, 02-003V, VOSH Procedures to comply with Enforcement Exemptions and Limitations OSHA Enforcement Exemption and under the Appropriations Act, May 28, Limitations under the Federal 1998 (including annually updated Appropriations Act, OSHA Instruction CPL Appendix A). 02-00-051; Appendix A Revisions (04/01/21) or its successor
OSHA Instruction CPL 02-02-072, Rules 02-022A, 29 CFR 1913.10, Rules of
of Agency Practice and Procedure Agency Practice and Procedure Concerning OSHA Access to Employee Concerning OSHA Access to Employee Medical Records, August 22, 2007. Medical Records (11/01/09) or its successor
OSHA Instruction CPL 02-00-155, Inspection 02-105A, Inspection Scheduling for Scheduling for Construction, September 6, Construction (01/15/14) or its successor
OSHA Instruction CPL 02-00-164, Field 09-001, VOSH Field Operation Manual Operations Manual (FOM), April 14, 2020. (FOM) (08/01/2020) or its successor
--- Page 5 ---
U. S. DEPARTMENT OF LABOR Occupational Safety and Health Administration
DIRECTIVE NUMBER: CPL 03-00-023 EFFECTIVE DATE: 02/04/2020 SUBJECT: National Emphasis Program – Respirable Crystalline Silica
**NOTE: Minor changes {in brackets} were made to this directive on June 29, 2020, after the issuance of OSHA Instruction, CPL 02-02-080, Inspection Procedures for the Respirable Crystalline Silica Standards, June 25, 2020. These changes do not impact this National Emphasis Program’s scope or policy.
ABSTRACT Purpose: This Instruction describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures to respirable crystalline silica (RCS) in general industry, maritime, and construction. The NEP targets specific
industries expected to have the highest exposures to RCS.
Scope: This Instruction applies OSHA-wide.
References: Federal Register, 81 FR 16285-16890, §§ 1910, 1915, 1926, Occupational Exposure to Respirable Crystalline Silica; Final Rule, March 25, 2016. {OSHA Instruction CPL 02-02-080, Inspection Procedures for the Respirable Crystalline Silica Standards, June 25, 2020.}
OSHA Instruction CPL 02-00-025, Scheduling System for Programmed Inspections, January 4, 1995.
OSHA Instruction CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, May 28, 1998 (including
annually updated Appendix A). {OSHA Instruction CPL 02-00-163 CPL 02-00-164, Field Operations Manual (FOM), September 13, 2019 April 14, 2020}.
(See Section III for additional references.) Cancellations: {OSHA Notice CPL 03-00-007, Cancellation of CPL 03-00-007, National Emphasis Program - Crystalline Silica, October 26, 2017 None}.
i
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State Plan Impact: This Instruction describes a federal program change for which State Plan adoption is required (see Section VI).
ii
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Action Offices: OSHA Regional and Area Offices, State Plan and State Consultation Offices Originating Office: Directorate of Enforcement Programs, Office of Health Enforcement
Contact: Directorate of Enforcement Programs Office of Health Enforcement 200 Constitution Avenue, NW, Room N3119 Washington, DC 20210
By and Under the Authority of
LOREN SWEATT Principal Deputy Assistant Secretary
iii
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Executive Summary
This Instruction describes policies and procedures for implementing a National Emphasis Program (NEP) to identify and reduce or eliminate worker exposures to respirable crystalline silica (RCS) in general industry, maritime, and construction industries. It targets specific industries expected to have the highest exposures to RCS and focuses on enforcement of the new RCS Standards, 29 CFR § 1910.1053 and 29 CFR § 1926.1153, which were published in the Federal Register, Vol. 81, No. 58, on March 25, 2016, and became effective on June 23, 2016.
Significant Changes
This Instruction follows the cancellation of the 2008 Crystalline Silica NEP in October 2017.
The following list highlights the differences between this replacement NEP and the former NEP:
This replacement NEP addresses enforcement of OSHA’s standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction.
Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016). This NEP contains an updated list of target industries, listed by North American Industry
Classification System (NAICS) codes. For inspection procedures, this NEP refers compliance safety and health officers (CSHOs) to {the new OSHA Instruction, CPL 02-02-080, Inspection Procedures for the Respirable Crystalline Silica Standards, June 25, 2020 current enforcement guidance for the Respirable Crystalline Silica Standards}.
State Plan participation in this NEP has been made mandatory. Area and Regional Offices shall comply with this NEP, but they are not required to develop
and implement corresponding Local Emphasis Programs (LEPs) or Regional Emphasis Programs (REPs). Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
Area Offices are no longer required to send abatement verification to the National Office.
iv
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Table of Contents
I. Purpose ..................................................................................................................................1
II. Scope. ....................................................................................................................................1 IV. Cancellations .........................................................................................................................2
V. Action Offices. ......................................................................................................................3 A. Responsible Office. ....................................................................................................... 3
B. Action Offices ............................................................................................................... 3 C. Information Offices ....................................................................................................... 3
VI. Federal Program Change .......................................................................................................3 VII. Significant Changes ...............................................................................................................3
VIII. On-Site Consultation Programs .............................................................................................4 IX. Background. ..........................................................................................................................4
X. National Emphasis Program (NEP) Goal. .............................................................................7 XI. Program Procedures ..............................................................................................................7
A. General .......................................................................................................................... 7
B. Site Selection. ............................................................................................................... 7 C. Inspection Scheduling ................................................................................................... 9
D. Inspection Procedures ................................................................................................. 11 E. CSHO Protection. ....................................................................................................... 13
F. Follow-up Inspections ................................................................................................. 13 G. OSHA Information System (OIS) Coding Instructions .............................................. 14
H. Outreach ...................................................................................................................... 14 I. Coordination. .............................................................................................................. 16
J. Program Review .......................................................................................................... 16
Appendix A: Target Industries for the RCS NEP
Appendix B: Supplemental Industries for the RCS NEP
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I. Purpose.
This Instruction establishes a new National Emphasis Program (NEP) for respirable crystalline silica (RCS). It describes policies and procedures for implementing the NEP to identify and reduce or eliminate worker exposures to RCS in general industry, maritime, and construction industries. It targets specific industries expected to have the highest exposures to RCS and focuses on enforcement of the two RCS standards, 29 CFR § 1910.1053 and 29 CFR § 1926.1153, published in the Federal Register, Vol. 81, No.
58, on Friday, March 25, 2016, which became effective on June 23, 2016.
II. Scope.
This Instruction applies OSHA-wide.
III. References.
A. Federal Register, 81 FR 16285-16890, §§ 1910, 1915, 1926, Occupational Exposure to Respirable Crystalline Silica; Final Rule, March 25, 2016. https://www.gpo.gov/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf. B. OSHA Instruction ADM 04-00-002, OSHA Safety and Health Management System, October 5, 2016. https://www.osha.gov/enforcement/directives/adm-04-00-002.
C. {OSHA Instruction CPL 02-02-080, Inspection Procedures for the Respirable Crystalline Silica Standards, June 25, 2020. https://www.osha.gov/enforcement/directives/cpl-02-02-080.}
D. OSHA Instruction CPL 02-00-025, Scheduling System for Programmed Inspections, January 4, 1995. https://www.osha.gov/enforcement/directives/cpl-02-00-025. E. OSHA Instruction CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, May 28, 1998 (including annually updated Appendix A). https://www.osha.gov/enforcement/directives/cpl-02-00-051.
F. OSHA Instruction CPL 02-02-072, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, August 22, 2007. https://www.osha.gov/enforcement/directives/cpl-02-02-072.
G. OSHA Instruction CPL 02-00-155, Inspection Scheduling for Construction, September 6, 2013. https://www.osha.gov/enforcement/directives/cpl-02-00-155. H. {OSHA Instruction CPL 02-00-163 CPL 02-00-164, Field Operations Manual (FOM), September 13, 2019 April 14, 2020. https://www.osha.gov/enforcement/directives/cpl-02-00-163164}.
I. OSHA Instruction CSP 03-02-003, OSHA Strategic Partnership Program for Worker Safety and Health, November 6, 2013. https://www.osha.gov/enforcement/directives/csp-03-02-003.
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J. OSHA Instruction CPL 04-00-002, Procedures for the Approval of Local Emphasis Programs (LEPs), November 13, 2018. https://www.osha.gov/enforcement/directives/cpl-04-00-002. K. OSHA Memorandum on Establishment-Targeting Lists for Emphasis Programs, November 12, 2014. https://www.osha.gov/dep/enforcement/establishment_targeting_lists_11122014.h tml.
L. OSHA Memorandum on Procedures for Local and Regional Emphasis Programs, December 3, 2014. https://www.osha.gov/dep/enforcement/procedures_for_emphasis_12032014.html.
M. OSHA/NIOSH Hazard Alert, Worker Exposure to Silica during Hydraulic Fracturing, June 2012. https://www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.html. [Note, some information in this document does not reflect OSHA’s respirable crystalline silica rule published on March 25, 2016.] N. OSHA/NIOSH Hazard Alert, Worker Exposure to Silica during Countertop Manufacturing, Finishing and Installation, February 2015.
https://www.osha.gov/dts/hazardalerts/silica_hazard_alert.html. [Note, some information in this document does not reflect OSHA’s respirable crystalline silica rule published on March 25, 2016.] {O. OSHA Notice CPL 03-00-007, Cancellation of CPL 03-00-007, National Emphasis Program – Crystalline Silica, October 26, 2017. https://www.osha.gov/enforcement/directives/cpl-03-00-007-0.}
O. OSHA Safety and Health Topics: Oil and Gas Extraction (webpage). https://www.osha.gov/SLTC/oilgaswelldrilling/. P. OSHA Safety and Health Topics: Silica, Crystalline (webpage). https://www.osha.gov/dsg/topics/silicacrystalline/.
Q. OSHA Notice 18-01 (CPL 02), Site-Specific Targeting 2016 (SST-16), October 16, 2018 (or subsequent version). https://www.osha.gov/enforcement/directives/18-01-cpl-02.
R. OSHA Instruction ADM 03-01-005, OSHA Compliance Records, August 3, 1998. https://www.osha.gov/enforcement/directives/adm-03-01-005. S. OSHA Instruction CPL 02-02-054, Respiratory Protection Program Guidelines, July 14, 2000. https://www.osha.gov/enforcement/directives/cpl-02-02-054.
T. Centers for Disease Control and Prevention (CDC), “Silicosis Mortality Trends and New Exposures to Respirable Crystalline Silica - United States, 2001–2010.” Morbidity and Mortality Weekly Report: MMWR, February 13, 2015 / 64(05);117-120. https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6405a1.htm.
IV. Cancellations.
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{OSHA Notice CPL 03-00-007, Cancellation of CPL 03-00-007, National Emphasis Program - Crystalline Silica, October 26, 2017 None}.
V. Action Offices.
A. Responsible Office.
Directorate of Enforcement Programs, Office of Health Enforcement
B. Action Offices.
OSHA Regional and Area Offices, State Plan and State Consultation Offices
C. Information Offices.
OSHA National Office
VI. Federal Program Change.
This Instruction describes a federal program change that establishes an NEP to identify and reduce or eliminate overexposures to RCS. Because of the seriousness of the hazards
associated with exposure to RCS and the prevalence of such exposures nationwide, State Plans are required to participate in this NEP.
State Plans are required to notify OSHA within 60 days whether the State Plan’s emphasis program will be identical to or different from the federal program. If a State Plan is already implementing an emphasis program in this area, or if it adopts an initiative in response to this federal program change, its implementing policies and procedures are expected to be at least as effective as those in this Instruction.
If a State Plan adopts or maintains an emphasis program on RCS that differs from the federal program, then the State Plan shall identify the differences and shall either post its different procedures on its State Plan website and provide a link to OSHA, or provide an electronic copy to OSHA with information on how the public may obtain a copy. State Plan adoption, either identical or different, shall be accomplished within 6 months.
Documentation of State Plan adoption, and the date of adoption, shall be submitted to OSHA within 60 days of adoption. OSHA will provide summary information on the State Plan responses to this Instruction on OSHA’s website (www.osha.gov).
OSHA’s Office of Statistical Analysis (OSA) will work with the State Plans to provide the data necessary to develop targeting lists in accordance with the instructions in Section XI. OSHA will make the list(s) of establishments available to the State Plans. See coding instructions for the OSHA Information System (OIS) in Section XI.G.
This Instruction describes a change that may affect federal agencies. Federal agencies that are subject to inspection and have employees exposed to hazards covered by this emphasis program are also included in this NEP. See FOM Chapter 13, Federal Agency Field Activities.
VII. Significant Changes.
This Instruction follows the cancellation of the 2008 Crystalline Silica NEP in October 2017. The following list highlights the differences between this replacement NEP and the former NEP:
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A. This replacement NEP addresses enforcement of OSHA’s standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction. Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016).
B. This NEP contains an updated list of target industries, listed by North American Industry Classification System (NAICS) codes. C. For inspection procedures, this NEP refers compliance safety and health officers (CSHOs) to {the new OSHA Instruction, CPL 02-02-080, Inspection Procedures for the Respirable Crystalline Silica Standards, June 25, 2020 current enforcement guidance for the Respirable Crystalline Silica Standards}.
D. State Plan participation in this NEP has been made mandatory. E. Area and Regional Offices shall comply with this NEP, but they are not required to develop and implement corresponding Local Emphasis Programs (LEPs) or
Regional Emphasis Programs (REPs).
F. Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
G. Area Offices are no longer required to send abatement verification to the National Office.
VIII. On-Site Consultation Programs.
On-Site Consultation Programs are encouraged to develop their own strategic approaches for addressing the hazards associated with occupational exposure to crystalline silica.
See coding instructions for the OIS in Section XI.G.
IX. Background.
H. Crystalline silica is a common mineral found in many naturally occurring materials and used in many industrial products and at construction sites.
Materials including sand, concrete, stone, and mortar contain crystalline silica.
RCS consists of very small silica particles, typically at least 100 times smaller than ordinary sand found on beaches or playgrounds. RCS is generated by high-energy operations like cutting, sawing, grinding, drilling and crushing stone, rock, concrete, brick, block, and mortar; and when abrasive blasting with sand.
Exposure to RCS can also occur during manufacture of products such as glass, pottery, ceramics, bricks, concrete, countertops, and artificial stone. In particular, silica exposure during the fabrication of artificial stone countertops is an emerging hazard that has been associated with several recent outbreaks of severe accelerated silicosis in young workers in the U.S. Additionally, fine industrial sand used in industry can also be a source of RCS exposure, such as in certain
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foundry operations and, increasingly in recent years, during hydraulic fracturing (fracking).
Inhalation of elevated levels of RCS particles poses a health hazard and can cause multiple diseases, including silicosis, an incurable lung disease that can lead to disability and death. Exposure to RCS can also cause lung cancer, chronic obstructive pulmonary disease (COPD), and kidney disease. Simply being near sand or other silica-containing materials is not hazardous. The hazard is created
when specific activities generate respirable dust that is released into the air. See 81 FR at 16386-87, Table VI-1.
B. Addressing the workplace incidence of silicosis has been a primary goal of the Agency since its inception. OSHA first adopted permissible exposure limits (PELs) for workplace exposure to RCS in 1971: for general industry, see 29 CFR § 1910.1000, Table Z–3; for shipyards, see 29 CFR § 1915.1000, Table Z; and, for construction, see 29 CFR § 1926.55, Appendix A. The initial PELs for respirable quartz silica were approximately equivalent to 100 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA) for general
industry and 250 µg/m3 for construction and shipyards. See 81 FR at 16294.
In 1972, OSHA issued guidelines for conducting inspections in workplaces with significant crystalline silica exposure. In the early 1980s, the Agency placed special emphasis on the prevention of silicosis in foundry personnel. In 1996, OSHA implemented a Special Emphasis Program (SEP) to step up enforcement of the crystalline silica PELs. The SEP included extensive outreach designed to educate and train employers and employees about the hazards of silica and how to control them, and called for inspections to enforce the PELs.
In 2003, OSHA examined enforcement data for the years 1997 to 2002 and identified high rates of noncompliance with the RCS PELs, particularly in construction. This period covered the first five years of the SEP. The data indicated that just 66 percent of the silica samples obtained during inspections in general industry were in compliance with the applicable PEL, while only 58 percent of the samples collected in construction were in compliance. See 81 FR at 16295-16296.
In an effort to expand the 1996 SEP, on January 24, 2008, OSHA implemented an NEP to identify and reduce or eliminate the health hazards associated with occupational exposure to crystalline silica (CPL 03-00-007). The 2008 Silica NEP targeted construction and general industry worksites with potential overexposures to crystalline silica. The NEP instructed OSHA regions to ensure that at least 2 percent of their total inspections each year (or approximately 600 to 700 federal OSHA inspections annually, nationwide) addressed silica.
An analysis of OSHA enforcement data from January 2003 to December 2009 (covering a period of continued implementation of the SEP and the first two years of the NEP) again showed considerable noncompliance with the PELs. The data indicated that 30 percent of the silica samples obtained during inspections in general industry, and 25 percent of the samples collected in construction, were
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above the applicable PEL (i.e., OSHA found just 70 percent compliance in general industry and 75 percent in construction). See 81 FR at 16296.
C. In 2016, OSHA issued two new standards for RCS – one for general industry and maritime (29 CFR § 1910.1053) and one for construction (29 CFR § 1926.1153).
The 2016 standards established a new action level of 25 µg/m3, and a new PEL of 50 µg/m3, both calculated as 8-hour TWAs. The standards also require employers to take other steps to protect workers from silica hazards. In promulgating the
new standards, OSHA estimated the number of U.S. workers currently at risk from silica exposure to be over two million. Approximately 1,249,250 workers (1,097,000 in construction; 152,300 in general industry and maritime) were estimated to have silica exposures at or above the new action level of 25 µg/m3; and an estimated 948,100 workers (847,700 in construction; and 100,400 in general industry and maritime) had silica exposures above the new PEL of 50 µg/m3. See 81 FR at 16419. It is important to note that compliance with the new PEL is not expected to completely eliminate the risks associated with occupational exposure to RCS. Significant risks of mortality and morbidity still exist for workers exposed to RCS at the new PEL over a 45-year working life.
See 81 FR at 16386-87.
The 2008 Silica NEP was cancelled in 2017 (OSHA Notice CPL 03-00-007, Cancellation of CPL 03-00-007, National Emphasis Program - Crystalline Silica, October 26, 2017). The Agency explained that because it had issued new silica standards, the previous NEP was no longer applicable. OSHA further stated it would determine at a later date if a revised NEP for RCS, under the new standards, was warranted. The 2018-2022 DOL Strategic Plan does not specifically address silica, but it does state that OSHA continues to target high-risk industries for inspection and enforcement activity, and it assigns safety and health priorities through regional and national emphasis programs.
D. An April 2019 analysis conducted by OSHA reviewed all of the chemical air samples collected by the Agency between 2008 and 2017 (including 13,324 air samples for silica) and found that 14.1 percent of personal air samples for silica exceeded the applicable PEL, whereas only 2.5 percent of all chemical samples overall exceeded the relevant PEL. Furthermore, over the first year after OSHA began enforcing the new PEL for silica (October 27, 2017, through September 30, 2018), the Agency’s air sampling data shows that 133 of 754, or 17.6 percent, of silica samples exceeded the new PEL, whereas only 578 of 19,604, or 2.9 percent, of all chemical samples exceeded the relevant PEL. Data reported on by the Centers for Disease Control and Prevention also demonstrate that hazardous silica exposures are continuing to occur in industry, e.g., during hydraulic fracturing of gas and oil wells and among workers who fabricate and install engineered stone countertops (CDC 2015).
Because occupational exposures to silica continue to pose a significant risk to a large population of workers, and because OSHA’s sampling data continue to show a high rate of noncompliance (i.e., employee overexposures), OSHA has
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determined that this NEP is warranted. This NEP will aid OSHA’s efforts to address workplace exposures to RCS in accordance with the 2016 standards.
X. National Emphasis Program (NEP) Goal.
The goal of this NEP is to significantly reduce or eliminate worker exposures to RCS and, therefore, control the health hazards associated with such exposures. This goal will be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance. Inspections will be targeted toward industries and worksites expected to perform tasks associated with RCS overexposures.
In each Region, at least 2 percent of inspections every year shall target RCS. Silica-related inspections should be conducted at a range of facilities that reasonably represent the distribution of general industry, maritime, and construction worksites in that region.
OSHA anticipates that the majority of the inspections will occur in construction because most exposures to RCS occur on construction worksites.
To ensure abatement and measure the effectiveness of this NEP, follow-up site visits may be necessary, as outlined in Section XI.F, below.
XI. Program Procedures.
A. General.
Area Offices or Regional Offices are not required to develop a Local Emphasis Program (LEP) or Regional Emphasis Program (REP) for RCS; but if they do, they shall follow the procedures within this NEP and shall focus their LEP/REP on the industries identified in Appendix A that are operating within their jurisdiction. They may also modify any existing LEPs/REPs that already cover one or more of the targeted industries so as to address potential RCS overexposures. See CPL 04-00-002, Procedures for the Approval of Local Emphasis Programs (LEPs).
Appendices A and B of this Instruction provide lists of affected industries by their North American Industry Classification System (2017 NAICS) codes. The lists in Appendix A include industries where workers are currently at risk of RCS exposure above 100 μg/m3 as an 8-hour TWA. See Appendices A and B for more detailed information about the sources OSHA used to identify affected industries.
Establishments with fewer than 10 workers shall be included in this NEP. See CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act.
B. Site Selection.
- Master List Generation.
For programmed inspections, Appendix A provides lists of NAICS codes in general industry, maritime, and construction that have the largest numbers of workers expected to perform tasks associated with RCS
overexposures.
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Table 1 in Appendix A includes the NAICS codes for general industry and maritime that Area Offices are to use in the Establishment Targeting List– Generation System (ListGen) for generating a master list of establishments. Refer to the OSHA Memorandum, Establishment-Targeting Lists for Emphasis Programs, November 12, 2014.
Table 2 in Appendix A lists affected construction industry codes. Area Offices shall develop establishment lists for these industries by using the
OSHA Construction Inspection Targeting Application (C-target), compliance safety and health officers’ (CSHOs) observations of area construction sites (i.e., knowledge gathered by CSHO “drive-bys”), and local knowledge (e.g., lists of highway, road, and bridge projects from the local department of transportation). Refer to CPL 02-00-155, Inspection Scheduling for Construction. Also, accompanying Table 2 in Appendix A is a list of construction operations likely to have RCS exposures, provided as an aid for compliance officers.
Appendix B contains a supplemental table of NAICS codes from general
industry where there are smaller numbers of workers expected to perform tasks associated with RCS overexposures. Appendix B should be used by Area Offices in their master list generation only if their jurisdiction generates an insufficient number of establishments from Appendix A, or where local knowledge and data supports adding the industry to a targeting list.
See Appendices A and B for additional information about how the various lists of NAICS codes are organized.
- Additions.
Area Offices may add establishments to the generated master list based on
information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or previous OSHA inspection history).
- Deletions.
Area Offices shall delete from their target list for a current inspection cycle any facilities that they know are not likely to have RCS hazards or are no longer conducting business. Area Offices also shall delete any establishment that has had a comprehensive or focused health inspection that addressed RCS hazards within the three (3) previous fiscal years (after this NEP has been in effect for three years) and resulted in one of the following outcomes:
a. No serious citations were issued for violations of the applicable silica standard. b. Serious citation(s) were issued for violations of the applicable silica standard but either:
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A follow-up inspection documented appropriate and effective efforts by the employer to abate the serious silica hazards cited (e.g., air sampling conducted, engineering controls installed); or, OSHA received abatement verification from the employer for all cited serious silica violations.
Area Offices shall maintain documentation supporting any deletions made under this paragraph (see Section XI.B.5).
- Cycle Generation.
Each establishment on the Area Office’s master list will be assigned a sequential number. Acceptable methods for generating and randomizing the inspection targeting list can be found in the memorandum dated November 12, 2014, Establishment-Targeting Lists for Emphasis Programs. Subsequent cycles will be created in the same manner until such time that this NEP is cancelled or until all establishments on the list have been assigned to a cycle. Cycles may be created all at once or as
necessary, and need not be of the same size.
NOTE: Any establishment additions shall be added to the bottom of the master list in alphabetical order, assigned a sequential number, and randomized using established procedures.
- Maintaining Inspection List/Cycles and Documentation.
The Area Director is responsible for maintaining documentation necessary to demonstrate that the Area Office has used the NEP inspection list and cycles in accordance with this Instruction, including documenting all deletions, deferrals, or other modifications. The Area Office shall maintain all such inspection lists, cycles, and documentation for a period
of three years after all inspections conducted under this NEP plan are closed. See CPL 02-00-025, Scheduling System for Programmed Inspections; CPL 02-00-155, Inspection Scheduling for Construction; and ADM 03-01-005, OSHA Compliance Records.
C. Inspection Scheduling.
Within a specified cycle, inspections may be scheduled in any order that promotes efficient use of resources. An inspection cycle shall be completed before another cycle is started, except that establishments may be carried over in accordance with established procedures.
Some establishments selected for inspection under this NEP may also be selected
under other NEPs and/or LEPs. Some of the other NEPs that may apply to worksites targeted by this NEP include the NEPs for Amputations, Combustible Dust, Primary Metal Industries, and Lead. Whenever possible, inspections under this NEP should be carried out concurrently with other programmed inspections.
- Complaints and Referrals.
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Complaint(s) or referral(s) for any general industry, maritime, or construction operation alleging potential exposures to RCS, whether or not they fall within a targeted industry of this NEP, shall be handled in accordance with the general procedures in FOM Chapter 9, Complaint and Referral Processing, and in accordance with the specific procedures listed below: a. Complaints and referrals alleging potential worker exposures to
RCS or involving workers with symptoms of exposure to RCS (e.g., dry chronic cough, sputum production, shortness of breath, and reduced pulmonary function) shall be treated as having priority and a health inspection shall be conducted. b. Document the status and condition of the work operation as far as they are known, noting any potentially serious hazard(s). Where possible, this should include process information (such as the type of process or conditions of exposure) that is indicative of the likelihood of exposure to RCS. Documentation of the events
leading up to the observation shall be maintained in the file. c. Note the location of the workplace and the name and address of the employer(s) performing the operation.
d. Whistleblower Protections. Workers requesting inspections, complaining of silica exposure, or reporting injuries or illnesses may be covered under one or more whistleblower statutes. Inform them of their protections from retaliation and refer them to https://www.whistleblowers.gov/ for more information. 2. Cooperative Programs.
Employers participating in cooperative programs may be exempt from programmed inspections. After inspection lists are generated, the Area Office should contact the Cooperative and State Programs Unit in their Regional Office to determine if any company on the list should be exempted. The CSHO should follow the procedures outlined in FOM Chapter 2, Program Planning, for further guidance if an on-site consultation visit is in progress, or if the establishment is a participant in OSHA’s Voluntary Protection Programs (VPP) or the Safety and Health Achievement Recognition Program (SHARP) or Pre-SHARP. Even if an
employer is exempt from a programmed inspection, the Area Office should notify the employer in writing that they are required to comply with the RCS standard. In such cases, the Regional Consultation Project Officer shall follow-up with the responsible Consultation Program Manager.
- Strategic Partnerships.
Inspections initiated at establishments currently engaged in strategic partnerships with OSHA shall be conducted in accordance with the terms
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outlined in the partnership agreement. See CSP 03-02-003, OSHA Strategic Partnership Program for Worker Safety and Health.
Establishments engaged in construction industry partnerships may qualify for a focused (or limited scope) inspection. Establishments engaged in a national partnership at non-construction worksites may also qualify for a focused (or limited scope) inspection with the approval of OSHA’s Assistant Secretary (see CSP 03-02-003, Section XIV.C, Programmed Inspection with a Limited Scope. Non-Construction, and Section XIV.D, Programmed Inspection with a Limited Scope. Construction).
- Site-Specific Targeting (SST).
If an establishment selected for inspection under this NEP is also selected under the current SST plan, then, whenever possible, NEP and SST plan inspections should be conducted concurrently. Refer to OSHA Notice 18-01 (CPL 02), Site-Specific Targeting 2016 (SST-16) (or subsequent version).
- Interim Period.
The new silica standards provided delayed compliance dates to allow
employers to become familiar with the standards, to plan their course of action for compliance, and to implement, design, and install applicable engineering controls and work practices. As of the effective date of this NEP: a. Construction employers shall comply with all requirements of the standard;
b. General industry and maritime employers: Shall comply with all requirements of the standard, except as outlined below.
The requirement to make medical surveillance available to each employee who is exposed at or above the action level for 30 or more days per year does not begin until June 23, 2020 (until then, medical surveillance shall be made available to employees exposed above the PEL for 30 or more days per year).
For hydraulic fracturing operations in the oil and gas industry, the obligations for engineering controls in paragraph (f)(1) of the general industry standard commence on June 23, 2021.
D. Inspection Procedures.
Inspections shall not be initiated under this NEP until the required outreach is conducted, per Section XI.H. However, during the outreach period, OSHA shall continue to respond to complaints, referrals, hospitalizations, and fatalities related to silica, and shall code such activities in accordance with Section XI.G. All inspections shall be conducted in accordance with the general provisions of the FOM and the {specific inspection procedures in the Silica Compliance Directive,
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CPL 02-02-080, Section IX, Inspection Procedures current inspection guidance for the silica standards}. Other general procedures related to preparing for inspections include:
- Once an inspection has been scheduled for an identified establishment, and prior to opening the inspection, the employer’s citation and fatality/accident history will be searched at the OSHA Establishment Search Page.
Inspections under this NEP are to be conducted by a CSHO who has
received appropriate training. This training shall be accomplished at the local level and cover the hazards of RCS, the contents of this Instruction, and {requirements outlined in the Silica Compliance Directive current enforcement guidance}, including other appropriate silica-related training (e.g., OTI training). FOM Chapter 3, Inspection Procedures, provides details on inspection planning for CSHOs.
-
The CSHO shall also determine whether the identified establishment is scheduled for any other programmed inspection (e.g., NEP, LEP).
-
At the opening conference, the CSHO will verify the correct NAICS code for the establishment with the employer. The CSHO shall also verify with the employer whether processes that may produce worker exposures to RCS are conducted at the facility or worksite. If it is determined that no such processes are present, then the CSHO shall exit the premises without conducting an inspection. However, if the establishment is targeted under another NEP or LEP, then the CSHO shall proceed with an inspection under the other program.
If any processes are present that may result in worker exposures to RCS, then the CSHO shall proceed with the inspection following the procedures in this NEP and {the Silica Compliance Directive current enforcement guidance for the silica standards}.
-
Inspections conducted under this NEP for RCS might include personal exposure monitoring. CSHOs should conduct air sampling, in accordance with the OSHA Technical Manual (OTM), Section II, Chapter 1, and OSHA sampling method ID-142. Conduct sampling, as necessary, even if it is for less than an 8-hour period, per {current inspection guidelines in the Silica Compliance Directive, CPL 02-02-080, Section IX.D, Exposure Assessment}. CSHOs assigned to inspections under this NEP shall take with them appropriate calibrated instruments, pre-weighed filters, and other equipment in case such monitoring is necessary. CSHOs should refer to {“Appendix B: Instructions for Air Samples” in the Silica Compliance Directive current inspection guidance for the silica standards}, if exposure monitoring is conducted.
-
All potential hazards observed in the course of any inspection conducted under this NEP shall be appropriately addressed. Other health hazards that may be observed include: exposure to elevated noise levels from cutting,
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drilling, or blasting operations; heat stress; and exposure to beryllium dust during abrasive blasting.
If the compliance officer observes serious safety violations that cannot be immediately mitigated by the employer, then an appropriate referral may be made, subject to any current exemptions or limitations on such activity.
Several targeted industries for the RCS NEP listed in Appendices A and B were on the annual appropriations exemption list issued January 2020 for
Appendix A of CPL 02-00-051, such as, NAICS 213112 - Support Activities for Oil and Gas Operations, NAICS 2211 - Electric Power Generation, Transmission and Distribution, NAICS 2362 - Nonresidential Building Construction, NAICS 2379 - Other Heavy and Civil Engineering Construction, and many others. See CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, Section XI.B.4.b, which provides: “Apparent safety violations noted during a health inspection of an establishment [with 10 or fewer employees] exempted from programmed safety inspections shall not be cited or referred for later inspection unless such violations create an imminent danger.”
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The CSHO will inform workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to OSHA during an inspection, filing a safety and health complaint with OSHA, reporting a work-related injury or illness, or complaining about silica exposure or other workplace hazards to management. E. CSHO Protection.
-
CSHOs shall protect themselves against all hazards during an inspection.
See FOM Chapter 3, Section II.C, Safety and Health Issues Relating to CSHOs. See also ADM 04-00-002, OSHA Safety and Health Management System.
- CSHOs shall wear appropriate respiratory protection inside an RCS-regulated area or other area where exposures are likely to exceed the PEL, such as may be the case during a task listed on Table 1 of the construction standard where required controls have not been fully and properly implemented.
- Respirators shall be selected in accordance with the respirator selection
procedures in CPL 02-02-054, Respiratory Protection Program Guidelines.
F. Follow-up Inspections.
If an employer covered by the general industry/maritime standard has not reduced RCS exposures to or below the PEL, or if an employer covered by the construction standard has not either fully and properly implemented required engineering controls, work practices, and respiratory protection for a task listed on Table 1 of that standard or reduced RCS exposures to or below the PEL, within
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the time period specified on the citation, then a follow-up inspection shall be conducted in accordance with FOM, Chapter 3, Section IX.A, Follow-up and Monitoring Inspections, based on available resources. Follow-up inspections should also be conducted if there are any unabated violations of other provisions of the standard. {Also, refer to the Silica Compliance Directive, CPL 02-02-080.} For situations where follow-ups cannot be performed (e.g., some construction
sites, fracking operations, or temporary abrasive blasting operations), the Area Office should, when possible, require the employer to provide written updates documenting the progress of abatement efforts, per 29 CFR § 1903.19. Note that the Area Office does not need to send abatement verification to the Directorate of Enforcement Programs (DEP) in the National Office, but the documentation needs to be available to DEP on request.
A follow-up inspection is not required when the Area Office has specific knowledge and documentation indicating that there are no workers exposed to
RCS.
G. OSHA Information System (OIS) Coding Instructions.
All enforcement activities (inspections, complaints, and referrals) and compliance assistance interventions conducted under this NEP shall be coded as “RCS-NEP” under the National Emphasis Program field in the OIS. Area Offices with their own LEP/REP shall also use the NEP code “RCS-NEP” in addition to their regional code.
On the OIS Inspection Type tab/page, for all programmed inspections under this NEP, code “RCS-NEP” as the Primary Emphasis Program that initiated the inspection. Additionally, the majority of inspections conducted under this NEP are to be coded under Inspection Category as a “Health” inspection.
Whenever a consultation request/visit is made related to this NEP, the NEP code “RCS-NEP” shall be recorded in the appropriate field on the Consultation request/visit forms.
NOTE: As of the effective date of this Instruction, silica inspections shall no longer be coded under the OIS field by using the Additional Code “N-02 SILICA.” H. Outreach.
- Offices.
At least three months prior to initiating inspections from the generated NEP list, each Area Office shall conduct outreach programs concerning this RCS NEP, in accordance with OSHA Memorandum on Procedures
for Local and Regional Emphasis Programs, December 3, 2014.
- Suggested Outreach.
Products and activities may include the following
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a. Letters and news releases announcing implementation of the updated Silica NEP. Include information about no-cost On-Site Consultation services available to small businesses. b. Seminars on silica-related topics, tailored for specific audiences, such as employers, employee groups, local trade unions, apprentice programs (e.g., masons, bricklayers, railroad employees), and equipment manufacturers. Local occupational medical staff can be
invited to participate. c. Working with existing partnerships and alliances, including disseminating information on the NEP and silica standard, and sharing successes and technical information on effective means to control and reduce or eliminate worker exposure to crystalline silica.
d. Forming new working relationships, including partnerships and alliances, and more informal working relationships with organizations that can help disseminate information to small businesses and other employers.
e. Working with On-Site Consultation programs, local Small Business Development Centers (SBDC), and other organizations to reach small businesses. f. For more outreach ideas, see the Menu of Possible Silica Outreach Activities for the Silica Standards in the Silica Outreach Toolbox on the Compliance Assistance webpage on the OSHA intranet.
- Targeted Audiences for Outreach. a. Local employers engaged in silica-related work, especially small employers (e.g., chimney repairers, stone countertop suppliers and installers). See also targeted industries in Appendix A.
b. Local employer associations (e.g., a local chamber of commerce).
c. Insurance companies. d. Equipment manufacturers.
e. A regional Service, Transmission, Exploration & Production Safety (STEPS) network (see also https://www.nationalstepsnetwork.com/regional-chapters). f. Local trade unions and apprenticeship programs (e.g., masons, bricklayers, railroad workers) and other worker groups.
g. Independent contractors and the self-employed. h. Local hospitals, occupational health clinics, and other health organizations (e.g., state lung associations).
i. Local professional associations (e.g., local safety councils).
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j. Temporary employment agencies providing employees to targeted employers (e.g., construction day laborers). k. Local building permitting authorities.
l. Local newspapers, TV stations, trade magazines (these can help inform the public and hard-to-reach employers). m. Local government (e.g., health departments and departments of transportation).
n. Local suppliers of materials or services, tool rental companies. 4. Online Materials.
OSHA resources may be of assistance in this outreach effort. A variety of online resources can be accessed through OSHA’s public webpage, including the OSHA Crystalline Silica Safety and Health Topics Page (https://www.osha.gov/dsg/topics/silicacrystalline/). Internal resources for silica are also available on the Compliance Assistance webpage on the OSHA intranet.
I. Coordination. 1. National Office.
This NEP will be coordinated by the Directorate of Enforcement Programs (DEP), Office of Health Enforcement (OHE). All questions and comments regarding this NEP should be directed to OHE. For inspection support, Area and Regional Offices may also coordinate, as needed, with the Directorate of Technical Support and Emergency Management (DTSEM), the Office of Occupational Medicine and Nursing (OOMN), the Health Response Team (HRT), and other offices. For questions about outreach support and resources, contact the Office of Outreach Services and Alliances (OOSA) in the Directorate of Cooperative and State Programs (DCSP).
- Regional Office.
Each Regional Administrator is required to identify a coordinator for this
NEP who will work with the Office of Health Enforcement.
J. Program Review.
To assess the effectiveness of this NEP, OHE will review the NEP on a periodic basis, as should each Regional Office. Regions that implement related LEPs and REPs should forward any periodic reports to OHE. The program review reports shall, at a minimum, address the NEP goal (see Section X) in accordance with established Agency procedures. Data on effectiveness may include:
-
The number of employees covered.
-
The number of workers removed from hazards.
- Reductions in worker exposures.
16
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- Abatement measures implemented.
-
Number of violations related to specific targeted hazards.
-
Any indices that relate directly to measures that may be included in the DOL Strategic Plan and/or the OSHA Operating Plan.
- Total number of prosecutable violations of the silica standards (including final citations resulting from the settlement or litigation of contested cases).
17
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APPENDIX A: Target Industries for the RCS NEP
Table 1 in this Appendix comprises the general industry/maritime NAICS codes from Table VII-5 in OSHA’s RCS final rule that have the highest numbers of workers with exposures above 100 μg/m3 as a TWA (see 81 FR at 16427-32).1 These codes represent approximately the top third (33 out of 105) of all affected general industry/maritime industries in Table VII-5. Those 33 general and maritime industries listed in Table 1 employ over 98 percent of the at-risk workers
reflected in Table VII-5. Field offices will prepare their master lists of establishments from Table 1 using the Establishment Targeting List-Generation System (ListGen).
Table 2 in this Appendix contains a list of all affected construction NAICS codes, also from Table VII-5 in the RCS final rule (see 81 FR at 16427). Accompanying Table 2 is a list of construction operations likely to have RCS exposures, provided as an aid for compliance officers. Field offices will develop establishment lists from the industries listed on Table 2 using OSHA’s Construction Inspection Targeting Application (C-Target) database, local knowledge, and CSHO drive-bys.
Note that employee overexposures to RCS may occur in industries not listed in this appendix.
Similarly, it should not be assumed that employee overexposure to RCS occurs in all establishments within the industries listed in the tables below.
1 Table VII-5: Numbers of Workers Exposed to Silica (by Affected Industry and Exposure Level (μg/m3)), contains NAICS codes for each affected industry in construction and general industry/maritime (see 81 FR at 16427-32). It presents the estimated number of workers in these industries that are currently at risk from RCS exposure above 25 μg/m3, 50 μg/m3, 100 μg/m3, and 250 μg/m3, as 8-hour TWAs. Table VII-5 used 2012 NAICS codes (see 81 FR at 16427-32). These industries have identical codes in the 2017 NAICS, so this Appendix A uses the 2017 NAICS codes.
Appendix A-1
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Table 1. Targeted Industries in General Industry/Maritime by 2017 NAICS NAICS Industry Code 213112 Support Activities for Oil and Gas Operations1 221100 Electric Power Generation, Transmission and Distribution1 221111 Hydroelectric Power Generation 221112 Fossil Fuel Electric Power Generation 221113 Nuclear Electric Power Generation 221114 Solar Electric Power Generation 221115 Wind Electric Power Generation 221116 Geothermal Electric Power Generation 221117 Biomass Electric Power Generation 221118 Other Electric Power Generation 221121 Electric Bulk Power Transmission and Control 221122 Electric Power Distribution 324122 Asphalt Shingle and Coating Materials Manufacturing 325510 Paint and Coating Manufacturing 327110 Pottery, Ceramics, and Plumbing Fixture Manufacturing 327120 Clay Building Material and Refractories Manufacturing 327212 Other Pressed and Blown Glass and Glassware Manufacturing 327213 Glass Container Manufacturing 327320 Ready-Mix Concrete Manufacturing 327331 Concrete Block and Brick Manufacturing 327332 Concrete Pipe Manufacturing 327390 Other Concrete Product Manufacturing 327991 Cut Stone and Stone Product Manufacturing 327992 Ground or Treated Mineral and Earth Manufacturing 327993 Mineral Wool Manufacturing 327999 All Other Miscellaneous Nonmetallic Mineral Product Manufacturing 331511 Iron Foundries
331512 Steel Investment Foundries 331513 Steel Foundries (except Investment) 331524 Aluminum Foundries (except Die-Casting) 331529 Other Nonferrous Metal Foundries (except Die-Casting) 332710 Machine Shops 332812 Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers 336611 Ship Building and Repairing1 336612 Boat Building1 339114 Dental Equipment and Supplies Manufacturing 339910 Jewelry and Silverware Manufacturing 339950 Sign Manufacturing
423840 Industrial Supplies Merchant Wholesalers
Appendix A-2
[TABLE 28-1] NAICS | Industry Code | 213112 | Support Activities for Oil and Gas Operations1 221100 | Electric Power Generation, Transmission and Distribution1 221111 Hydroelectric Power Generation 221112 Fossil Fuel Electric Power Generation 221113 Nuclear Electric Power Generation 221114 Solar Electric Power Generation 221115 Wind Electric Power Generation 221116 Geothermal Electric Power Generation 221117 Biomass Electric Power Generation 221118 Other Electric Power Generation 221121 Electric Bulk Power Transmission and Control 221122 Electric Power Distribution 324122 | Asphalt Shingle and Coating Materials Manufacturing 325510 | Paint and Coating Manufacturing 327110 | Pottery, Ceramics, and Plumbing Fixture Manufacturing 327120 | Clay Building Material and Refractories Manufacturing 327212 | Other Pressed and Blown Glass and Glassware Manufacturing 327213 | Glass Container Manufacturing 327320 | Ready-Mix Concrete Manufacturing 327331 | Concrete Block and Brick Manufacturing 327332 | Concrete Pipe Manufacturing 327390 | Other Concrete Product Manufacturing 327991 | Cut Stone and Stone Product Manufacturing 327992 | Ground or Treated Mineral and Earth Manufacturing 327993 | Mineral Wool Manufacturing 327999 | All Other Miscellaneous Nonmetallic Mineral Product Manufacturing 331511 | Iron Foundries 331512 | Steel Investment Foundries 331513 | Steel Foundries (except Investment) 331524 | Aluminum Foundries (except Die-Casting) 331529 | Other Nonferrous Metal Foundries (except Die-Casting) 332710 | Machine Shops 332812 | Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers 336611 | Ship Building and Repairing1 336612 | Boat Building1 339114 | Dental Equipment and Supplies Manufacturing 339910 | Jewelry and Silverware Manufacturing 339950 | Sign Manufacturing 423840 | Industrial Supplies Merchant Wholesalers
[/TABLE]
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NAICS Industry Code 482110 Rail transportation 482111 Line-Haul Railroads 482112 Short Line Railroads 561730 Landscaping Services1 999200 State governments1,2 999300 Local governments1,2 1 Industry may perform construction-like activities in-house and/or at off-site locations. 2 For State Plan targeting only; not for federal targeting.
Appendix A-3
[TABLE 29-1] NAICS | Industry Code | 482110 | Rail transportation 482111 Line-Haul Railroads 482112 Short Line Railroads 561730 | Landscaping Services1 999200 | State governments1,2 999300 | Local governments1,2
[/TABLE]
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Table 2. Targeted Industries in Construction by 2017 NAICS NAICS Industry Code Residential Building Construction 236115 New Single-Family Housing Construction (except For-Sale Builders) 236100 236116 New Multifamily Housing Construction (except For-Sale Builders) 236117 New Housing For-Sale Builders 236118 Residential Remodelers Nonresidential Building Construction 236200 236210 Industrial Building Construction 236220 Commercial and Institutional Building Construction Utility System Construction 237110 Water and Sewer Line and Related Structures Construction 237100 237120 Oil and Gas Pipeline and Related Structures Construction 237130 Power and Communication Line and Related Structures Construction Land Subdivision 237200 237210 Land Subdivision Highway, Street, and Bridge Construction 237300 237310 Highway, Street, and Bridge Construction Other Heavy and Civil Engineering Construction 237900 237990 Other Heavy and Civil Engineering Construction Foundation, Structure, and Building Exterior Contractors 238110 Poured Concrete Foundation and Structure Contractors 238120 Structural Steel and Precast Concrete Contractors 238130 Framing Contractors 238100 238140 Masonry Contractors 238150 Glass and Glazing Contractors 238160 Roofing Contractors 238170 Siding Contractors 238190 Other Foundation, Structure, and Building Exterior Contractors Building Equipment Contractors 238210 Electrical Contractors and Other Wiring Installation Contractors 238200 238220 Plumbing, Heating, and Air-Conditioning Contractors 238290 Other Building Equipment Contractors Building Finishing Contractors 238310 Drywall and Insulation Contractors 238320 Painting and Wall Covering Contractors 238300 238330 Flooring Contractors 238340 Tile and Terrazzo Contractors 238350 Finish Carpentry Contractors 238390 Other Building Finishing Contractors Other Specialty Trade Contractors 238900 238910 Site Preparation Contractors 238990 All Other Specialty Trade Contractors Appendix A-4
[TABLE 30-1] NAICS | Industry Code | 236100 | Residential Building Construction 236115 New Single-Family Housing Construction (except For-Sale Builders) 236116 New Multifamily Housing Construction (except For-Sale Builders) 236117 New Housing For-Sale Builders 236118 Residential Remodelers 236200 | Nonresidential Building Construction 236210 Industrial Building Construction 236220 Commercial and Institutional Building Construction 237100 | Utility System Construction 237110 Water and Sewer Line and Related Structures Construction 237120 Oil and Gas Pipeline and Related Structures Construction 237130 Power and Communication Line and Related Structures Construction 237200 | Land Subdivision 237210 Land Subdivision 237300 | Highway, Street, and Bridge Construction 237310 Highway, Street, and Bridge Construction 237900 | Other Heavy and Civil Engineering Construction 237990 Other Heavy and Civil Engineering Construction 238100 | Foundation, Structure, and Building Exterior Contractors 238110 Poured Concrete Foundation and Structure Contractors 238120 Structural Steel and Precast Concrete Contractors 238130 Framing Contractors 238140 Masonry Contractors 238150 Glass and Glazing Contractors 238160 Roofing Contractors 238170 Siding Contractors 238190 Other Foundation, Structure, and Building Exterior Contractors 238200 | Building Equipment Contractors 238210 Electrical Contractors and Other Wiring Installation Contractors 238220 Plumbing, Heating, and Air-Conditioning Contractors 238290 Other Building Equipment Contractors 238300 | Building Finishing Contractors 238310 Drywall and Insulation Contractors 238320 Painting and Wall Covering Contractors 238330 Flooring Contractors 238340 Tile and Terrazzo Contractors 238350 Finish Carpentry Contractors 238390 Other Building Finishing Contractors 238900 | Other Specialty Trade Contractors 238910 Site Preparation Contractors 238990 All Other Specialty Trade Contractors
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Construction Activities that May Involve RCS Exposure
The following list is provided to help Area Offices with targeting of construction work sites by listing operations likely to have exposures to RCS, as described in the preamble, pages 16406 and 16459: Abrasive blasting
Drywall finishing Earth drilling
Heavy equipment operations (excavating, grading, abrading, or fracturing silica-containing materials, or demolishing concrete or masonry structures) Concrete and masonry hole drilling using handheld or stand-mounted drills
Jackhammering and powered, handheld, chipping of concrete and masonry Masonry, concrete, or fiber-cement board cutting using portable saws, walk-behind saws, drivable or ride-on saws, rig-mounts core saws and drills, or stationary saws Milling of asphalt using portable or mobile machines, such as walk-behind milling machines, floor grinders, or drivable milling machines
Rock and concrete drilling using vehicle-mounted drilling rigs and dowel drilling rigs Mobile concrete crushing machines
Tuckpointing and grinding using handheld grinders for mortar removal and other than mortar removal (Reference: 81 FR at 16406, 16459)
See also the specific equipment and tasks in the left-hand column of 29 CFR § 1926.1153(c)(1), Table 1, and the OSHA Small Entity Compliance Guide for the Respirable Crystalline Silica
Standard for Construction, available at https://www.osha.gov/Publications/OSHA3902.pdf. For videos of several of these tasks, see the following: Stationary Masonry Saws, https://www.youtube.com/watch?v=Eu0s4-ZLw9I&feature=youtu.be
Handheld Power Saws, https://www.youtube.com/watch?v=pfYI31pF4Ng&feature=youtu.be Handheld and Stand-Mounted Drills, https://www.youtube.com/watch?v=Yzo-sZ_PSic&feature=youtu.be
Jackhammers or Handheld Powered Chipping Tools, https://www.youtube.com/watch?v=e2uRD2dJ8vs&feature=youtu.be
Handheld Grinders for Mortar Removal (Tuckpointing), https://www.youtube.com/watch?v=D8Khz9vTdAk&feature=youtu.be Handheld Grinders for Uses Other than Mortar Removal, https://www.youtube.com/watch?v=X520VC-M3BI&feature=youtu.be
Appendix A-5
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APPENDIX B: Supplemental Industries for the RCS NEP
Industries in Table 1 below are not to be used for RCS NEP targeting, unless an insufficient number of establishments or inspections are generated using the industries listed in Appendix A, or where local knowledge or data is available to support adding the industry to a particular Area Office’s targeting list.
Table 1 in this Appendix contains the 72 general industry/maritime NAICS codes for affected industries from Table VII-5 of the Final Rule that are not included in Appendix A, Table 1 (see 81 FR at 16427-32). These industries employ less than two percent of all workers exposed to silica.
Table 1 in this Appendix also lists 15 additional industries identified from OSHA inspection history (between October 2014 and April 2017) that had silica overexposures, but are not among the industries included in Table VII-5.
Table 1. Supplemental Industries in General Industry by 2017 NAICS
NAICS Industry Code 213111 Drilling Oil and Gas Wells1 324121 Asphalt Paving Mixture and Block Manufacturing1,2 325194 Cyclic Crude, Intermediate, and Gum and Wood Chemical Manufacturing1 326291 Rubber Product for Manufacturing Mechanical Use1 327211 Flat Glass Manufacturing2 327420 Gypsum Product Manufacturing1 331110 Iron and Steel Mills and Ferroalloy Manufacturing2 331210 Iron and Steel Pipe and Tube Manufacturing from Purchased Steel2 331221 Rolled Steel Shape Manufacturing2 331222 Steel Wire Drawing2 331314 Secondary Smelting and Alloying of Aluminum2 331420 Copper Rolling, Drawing, Extruding, and Alloying2 331492 Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum)2 331523 Nonferrous Metal Die-Casting Foundries1 332111 Iron and Steel Forging2
332112 Nonferrous Forging2 332117 Powder Metallurgy Part Manufacturing2 332119 Metal Crown, Closure, and Other Metal Stamping (except Automotive)2 332215 Metal Kitchen Cookware, Utensil, Cutlery, and Flatware (except Precious) Manufacturing2 332216 Saw Blade and Hand tool Manufacturing2 332323 Ornamental and Architectural Metal Work Manufacturing2 332439 Other Metal Container Manufacturing2 332312 Fabricated Structural Metal Manufacturing1 332510 Hardware Manufacturing2
Appendix B-1
[TABLE 32-1] NAICS | Industry Code | 213111 | Drilling Oil and Gas Wells1 324121 | Asphalt Paving Mixture and Block Manufacturing1,2 325194 | Cyclic Crude, Intermediate, and Gum and Wood Chemical Manufacturing1 326291 | Rubber Product for Manufacturing Mechanical Use1 327211 | Flat Glass Manufacturing2 327420 | Gypsum Product Manufacturing1 331110 | Iron and Steel Mills and Ferroalloy Manufacturing2 331210 | Iron and Steel Pipe and Tube Manufacturing from Purchased Steel2 331221 | Rolled Steel Shape Manufacturing2 331222 | Steel Wire Drawing2 331314 | Secondary Smelting and Alloying of Aluminum2 331420 | Copper Rolling, Drawing, Extruding, and Alloying2 331492 | Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum)2 331523 | Nonferrous Metal Die-Casting Foundries1 332111 | Iron and Steel Forging2 332112 | Nonferrous Forging2 332117 | Powder Metallurgy Part Manufacturing2 332119 | Metal Crown, Closure, and Other Metal Stamping (except Automotive)2 332215 | Metal Kitchen Cookware, Utensil, Cutlery, and Flatware (except Precious) Manufacturing2 332216 | Saw Blade and Hand tool Manufacturing2 332323 | Ornamental and Architectural Metal Work Manufacturing2 332439 | Other Metal Container Manufacturing2 332312 | Fabricated Structural Metal Manufacturing1 332510 | Hardware Manufacturing2
[/TABLE]
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NAICS Industry Code 332613 Spring Manufacturing2 332618 Other Fabricated Wire Product Manufacturing2 332813 Electroplating, Plating, Polishing, Anodizing, and Coloring1 332911 Industrial Valve Manufacturing2 332912 Fluid Power Valve and Hose Fitting Manufacturing2 332913 Plumbing Fixture Fitting and Trim Manufacturing2 332919 Other Metal Valve and Pipe Fitting Manufacturing2 332991 Ball and Roller Bearing Manufacturing2 332996 Fabricated Pipe and Pipe Fitting Manufacturing2 332999 All Other Miscellaneous Fabricated Metal Product Manufacturing1,2 333318 Other Commercial and Service Industry Machinery Manufacturing2 333413 Industrial and Commercial Fan and Blower and Air Purification Equipment Manufacturing2 333414 Heating Equipment (except Warm Air Furnaces) Manufacturing2
333511 Industrial Mold Manufacturing2 333514 Special Die and Tool, Die Set, Jig, and Fixture Manufacturing2 333515 Cutting Tool and Machine Tool Accessory Manufacturing2 333517 Machine Tool Manufacturing2 333519 Rolling Mill and Other Metalworking Machinery Manufacturing2 333612 Speed Changer, Industrial High-Speed Drive, and Gear Manufacturing2 333613 Mechanical Power Transmission Equipment Manufacturing2 333911 Pump and Pumping Equipment Manufacturing2 333912 Air and Gas Compressor Manufacturing2 333991 Power-Driven Hand Tool Manufacturing2
333992 Welding and Soldering Equipment Manufacturing2 333993 Packaging Machinery Manufacturing2 333994 Industrial Process Furnace and Oven Manufacturing1,2 333995 Fluid Power Cylinder and Actuator Manufacturing2 333996 Fluid Power Pump and Motor Manufacturing2 333997 Scale and Balance Manufacturing2 333999 All Other Miscellaneous General Purpose Machinery Manufacturing1,2 334519 Other Measuring and Controlling Device Manufacturing2 335210 Small Electrical Appliance Manufacturing2
335221 Household Cooking Appliance Manufacturing2 335222 Household Refrigerator and Home Freezer Manufacturing2 335224 Household Laundry Equipment Manufacturing2 335228 Other Major Household Appliance Manufacturing2 336111 Automobile Manufacturing2 336112 Light Truck and Utility Vehicle Manufacturing2 336120 Heavy Duty Truck Manufacturing2 336211 Motor Vehicle Body Manufacturing2
Appendix B-2
[TABLE 33-1] NAICS | Industry Code | 332613 | Spring Manufacturing2 332618 | Other Fabricated Wire Product Manufacturing2 332813 | Electroplating, Plating, Polishing, Anodizing, and Coloring1 332911 | Industrial Valve Manufacturing2 332912 | Fluid Power Valve and Hose Fitting Manufacturing2 332913 | Plumbing Fixture Fitting and Trim Manufacturing2 332919 | Other Metal Valve and Pipe Fitting Manufacturing2 332991 | Ball and Roller Bearing Manufacturing2 332996 | Fabricated Pipe and Pipe Fitting Manufacturing2 332999 | All Other Miscellaneous Fabricated Metal Product Manufacturing1,2 333318 | Other Commercial and Service Industry Machinery Manufacturing2 333413 | Industrial and Commercial Fan and Blower and Air Purification Equipment Manufacturing2 333414 | Heating Equipment (except Warm Air Furnaces) Manufacturing2 333511 | Industrial Mold Manufacturing2 333514 | Special Die and Tool, Die Set, Jig, and Fixture Manufacturing2 333515 | Cutting Tool and Machine Tool Accessory Manufacturing2 333517 | Machine Tool Manufacturing2 333519 | Rolling Mill and Other Metalworking Machinery Manufacturing2 333612 | Speed Changer, Industrial High-Speed Drive, and Gear Manufacturing2 333613 | Mechanical Power Transmission Equipment Manufacturing2 333911 | Pump and Pumping Equipment Manufacturing2 333912 | Air and Gas Compressor Manufacturing2 333991 | Power-Driven Hand Tool Manufacturing2 333992 | Welding and Soldering Equipment Manufacturing2 333993 | Packaging Machinery Manufacturing2 333994 | Industrial Process Furnace and Oven Manufacturing1,2 333995 | Fluid Power Cylinder and Actuator Manufacturing2 333996 | Fluid Power Pump and Motor Manufacturing2 333997 | Scale and Balance Manufacturing2 333999 | All Other Miscellaneous General Purpose Machinery Manufacturing1,2 334519 | Other Measuring and Controlling Device Manufacturing2 335210 | Small Electrical Appliance Manufacturing2 335221 | Household Cooking Appliance Manufacturing2 335222 | Household Refrigerator and Home Freezer Manufacturing2 335224 | Household Laundry Equipment Manufacturing2 335228 | Other Major Household Appliance Manufacturing2 336111 | Automobile Manufacturing2 336112 | Light Truck and Utility Vehicle Manufacturing2 336120 | Heavy Duty Truck Manufacturing2 336211 | Motor Vehicle Body Manufacturing2
[/TABLE]
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NAICS Industry Code 336212 Truck Trailer Manufacturing1,2 336213 Motor Home Manufacturing2 336310 Motor Vehicle Gasoline Engine and Engine Parts Manufacturing2 336320 Motor Vehicle Electrical and Electronic Equipment Manufacturing2 336330 Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing2 336340 Motor Vehicle Brake System Manufacturing1,2 336350 Motor Vehicle Transmission and Power Train Parts Manufacturing2 336370 Motor Vehicle Metal Stamping2 336390 Other Motor Vehicle Parts Manufacturing2 336992 Military Armored Vehicle, Tank, and Tank Component Manufacturing2 337110 Wood Kitchen Cabinet and Countertop Manufacturing1,2 337127 Institutional Furniture Manufacturing1 337215 Showcase, Partition, Shelving, and Locker Manufacturing2 339116 Dental Laboratories1,2
423320 Brick, Stone, and Related Construction Material Merchant Wholesalers1 424950 Paint, Varnish, and Supplies Merchant Wholesalers1 444110 Home Centers1,2 541310 Architectural Services1 541410 Interior Design Services1 561320 Temporary Help Services1 621210 Offices of Dentists2 811121 Automotive Body, Paint, and Interior Repair and Maintenance1 811310 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance1
1 In OSHA inspection history (overexposures to silica at former PELs). 2 Industry from Table VII-5 of the Final Rule that is not included in Appendix A, Table 1.
Appendix B-3
[TABLE 34-1] NAICS | Industry Code | 336212 | Truck Trailer Manufacturing1,2 336213 | Motor Home Manufacturing2 336310 | Motor Vehicle Gasoline Engine and Engine Parts Manufacturing2 336320 | Motor Vehicle Electrical and Electronic Equipment Manufacturing2 336330 | Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing2 336340 | Motor Vehicle Brake System Manufacturing1,2 336350 | Motor Vehicle Transmission and Power Train Parts Manufacturing2 336370 | Motor Vehicle Metal Stamping2 336390 | Other Motor Vehicle Parts Manufacturing2 336992 | Military Armored Vehicle, Tank, and Tank Component Manufacturing2 337110 | Wood Kitchen Cabinet and Countertop Manufacturing1,2 337127 | Institutional Furniture Manufacturing1 337215 | Showcase, Partition, Shelving, and Locker Manufacturing2 339116 | Dental Laboratories1,2 423320 | Brick, Stone, and Related Construction Material Merchant Wholesalers1 424950 | Paint, Varnish, and Supplies Merchant Wholesalers1 444110 | Home Centers1,2 541310 | Architectural Services1 541410 | Interior Design Services1 561320 | Temporary Help Services1 621210 | Offices of Dentists2 811121 | Automotive Body, Paint, and Interior Repair and Maintenance1 811310 | Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance1
[/TABLE]
Health and Safety Guidelines OverviewDoc ID: 2007
2007 HEALTH INTERPRETATONS
TABLE OF CONTENTS
NOISE EXPOSURE STANDARD AND HEARING PROTECTION……………………...3
FIRE DEPARTMENTS AND HAZWOPER………………………………………………...3
HAZARDOUS WASTE AND EMERGENCY RESPONSE………………………………...4
HAZWOPER and Updates…………………………………………………………….4
Minimum Number of Haz-Mat Technicians………………………………………….4
PERSONAL PROTECTIVE EQUIPMENT (PPE)………………………………………….4
Contaminated Personal Protective Equipment (PPE)……………………………….4 PPE and Eyewear………………………………………………………………………5
Respirators and Facial Hair…………………………………………………………...5
Medical Evaluations……………………………………………………………………5
CONFINED SPACES (HEADBOX PITS)…………………………………………………...6
EYEWASH STATIONS……………………………………………………………………….6
SULFURIC ACID SPILLS……………………………………………………………………7
BLOODBORNE PATHOGENS………………………………………………………………7
Bloodborne Pathogens and Training for Courier Services……………………….....7
Exposure Incidents…………………………………………………………………......8
Home Health Services……………………………………………………………….....8
Contaminated Laundry……………………………………………………………......8
Urine………………………………………………………………………………...…..8
Mattresses and Mattress Pads…………………………………………………...…….9
Contaminated Needles, Sharps, Sponges, and Laps…………………………...……..9
Maintenance, Janitorial, or Housekeeping Staff……………………………...……...9 Nursing Homes………………………………………………………………..………10 Funeral Homes, Construction and Operation……………………………..………..10
Conducting Bloodborne Pathogens Training……………………………..………...11 Showers/Handwashing Facilities…………………………………………..………...11
ORGANIC SOLVENTS AND LOWER EXPLOSIVE LIMIT (LEL’S)……..…………..11
CONCENTRATIONS OF LEAD, CHROMIUM AND CADMIUM IN PAINT……..….12
ASBESTOS………………………………………………………………………………..…..12
Asbestos: General………………………………………………………………..…...12
Asbestos Physicals………………………………………………………………..…...13
Asbestos disposal in large facility components………………………………..…….13 Asbestos and Air Monitoring…………………………………………………..…….13
Homeowners Removing Asbestos……………………………………………..……..14
Asbestos NESHAP and Buildings to be Demolished……………………….……....14
SHOWERS………………………………………………………………………….………...14
VETERINARIANS…………………………………………………………………………..15
MATERIAL SAFETY DATA SHEETS (MSDS)………………………………………….15
HAZARDOUS SUBSTANCES AND HAZARD COMMUNICATION …………………16
AIR CONTAMINANTS AND AIR QUALITY……………………………………………16
MOLD………………………………………………………………………………………...17
GASOLINE VAPORS IN THE AIR………………………………….……………………17 1
SMOKING IN THE WORKPLACE…………………………… ……….……………...17
TOILET FACILITIES AT BUILDING SITES (PORTABLE TOILETS)..………….18
FOOD SANITATION…………………………………………………………..………...18
HEAT STRESS…………………………………………………………….……..…….....18
OCCUPATIONAL SAFETY AND HEALTH IN HEALTH CARE FACILITIES......19
CONTAGIOUS DISEASES………………………………………………………..…......19
SAFETY AND HEALTH REGULATIONS FOR NURSING STAFF AGENCY….....19
OCCUPATIONAL SAFETY AND HEALTH REGULATIONS FOR…………….….20
PHYSICIANS AND MEDICAL EQUIPMENT
WATER PURIFICATION – SEWAGE TREATMENT PLANTS…………..…...…....20
FIRST AID…………………………………………………………………..……...……...21
ERGONOMIC RULES………………………………………………..…………...……...21
MICROWAVE OVENS…………………………………………..……………...………..22 2
NOISE EXPOSURE STANDARD AND HEARING PROTECTION
VOSH has adopted the federal OSHA identical 1910.95 Occupational noise exposure standard, which is applicable to all private and public sector workplaces, including places of entertainment and educational institutions. Employers must take appropriate measures to protect their employees who are exposed to excessive noise levels. To learn more, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=19093 .
The requirement for hearing protection is based on the level of noise to which employees are exposed, but it is not based solely on whether an employee has a standard threshold shift. To determine employees' noise exposure while using any type of equipment, measurements must be taken with a sound level meter. If sound level readings indicate that employees' noise exposure exceeds the permissible noise exposure levels in Table D-2 of the standard, and there are no feasible administrative or engineering controls to reduce the employees' noise exposure below these levels, then hearing protection must be provided. 1910.95(b)(1) requires that whenever feasible administrative or engineering controls fail to reduce sound to levels specified in Table G-16 of the standard, all exposed employees must be given, and must use, hearing protection to reduce the sound to permissible exposure levels. This applies to all employees in work areas where noise exposure exceeds the levels in Table G-16. In addition, employees exposed to an eight-hour Time Weighted Average (TWA) noise level of 85 dBA or greater, who have experienced a standard threshold shift, must be given, and must use, hearing protectors with sufficient attenuation to reduce noise levels below 85 dBA. See 1910.95(b)(1) and 1910.95(i)(2).
See the OSHA website: http://www.osha.gov/SLTC/noisehearingconservation/index.html.
If a physician determines that a standard threshold shift is work-related or further aggravated by an employee's noise exposure in the workplace, the employer must pay for any referrals that are for the purpose of further identifying the effects of occupational noise exposure. For more information, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=22593 .
FIRE DEPARTMENTS AND HAZWOPER
The training requirements of 1910.120 depend on the duties to be performed by an employee during an emergency. Paragraph (q) of 1910.120 requires different levels of training based on an employee’s assigned role. The required training and competencies for each level of emergency response are described in detail in paragraph (q)(6) of the final rule: (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=976 5).
The training curriculum guidelines are found in Appendix E of the standard: (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977 0). If the Virginia Department of Fire Programs’ training courses cover the suggested training curriculum guidelines for the particular response level, they meet the HAZWOPER training requirements. A list of training courses offered by the Virginia Department of Fire Programs is included on their web site: http://www.vdfp.state.va.us/training.htm. 3
HAZARDOUS WASTE AND EMERGENCY RESPONSE
HAZWOPER and Updates
VOSH has adopted the OSHA identical 1910.120 HAZWOPER standard. To view the OSHA interpretation which addresses lapsed training, see their website: www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21 062.
The duration of a HAZWOPER training class can be adjusted. A full 40 hour course may not be necessary if the employee can demonstrate competency in the required topics. The individual's retention of the information must be considered. A pre-test may help to make this assessment.
The person’s prior work experience in the hazardous waste industry should also be considered. If the employee is assigned to a new site, at a minimum, the employer would be required to have training specific to that site.
Minimum Number of Haz-Mat Technicians
The 1910.120 HAZWOPER standard does not have a requirement for a minimum number of Haz-Mat technicians who must be on the scene of a Haz-Mat incident. However, there is a requirement in the 1910.134 respiratory protection standard, under paragraph (g)(3), that at least one standby employee must be located outside when employees enter an IDLH atmosphere.
PERSONAL PROTECTIVE EQUIPMENT (PPE)
The OSHA/VOSH standards for Personal Protective Equipment (PPE) are found in 1910.132 through 138. Section 1910.132(d) requires employers to select PPE for their employees based on an assessment of the hazards in the workplace and the hazards the employees are likely to encounter. The standard does not list specific qualifications for the individual who conducts the hazard assessment. However, it would be expected that the individual conducting the assessment would be familiar with the unique work operations and hazards present at that particular work site. Furthermore, that individual should be knowledgeable in the selection of the appropriate PPE that would protect employees from the hazards identified in the hazard assessment.
Employers are required to provide appropriate personal protective equipment (PPE’s), such as gloves, to employees. For information on enforcement of the Bloodborne Pathogens standard, see section XI.C. Multi-Employer and Related Worksites in OSHA's compliance directive entitled “Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens:” http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2570
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The U.S. General Accounting Office (GAO) recommends hospitals have a three day supply of PPE. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) may have requirements for PPE’s. For more information, see their website: www.jointcommission.org/.
Contaminated Personal Protective Equipment (PPE)
Contaminated personal protective equipment (PPE) is addressed in Section 1910.1030 (d)(3)(iv) of the Bloodborne Pathogen Standard. Home laundering by employees is not permitted since the 4 standard requires the laundering to be performed by the employer at no cost to the employee.
Other types of contaminated laundry, i.e. linens and non-PPE items, are addressed in Section 1910.1030(d)(4)(iv). The standard allows on-site laundry of linens if the requirements in this section of the standard are met. For more on the Bloodborne Pathogens standard, see OSHA’s directive, “Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens:” http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2570 For further information, see also: http://www.osha.gov/SLTC/bloodbornepathogens/index.html .
PPE and Eyewear
Employers are required by 1910.133 to ensure that employees use appropriate eye protection when exposed to eye hazards such as flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation. The design, construction, testing, and use of devices for eye protection must comply with the American National Standard for Occupational and Education Eye and Face Protection, Z87.1-1968. To view a copy of this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977 8 . Additional information about eye protection can be found at this OSHA Safety and Health Topics web page: http://www.osha.gov/SLTC/eyefaceprotection/index.html .
OSHA’s Eye and face protection standard, 1910.133, requires protective eye devices purchased after July 5, 1994 to comply with ANSI Z87.1-1989, "American National Standard Practice for Occupational and Educational Eye and Face Protection." The Eye and face protection standard can be found on OSHA’s website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=977
Any replacement lenses or frames for safety glasses marketed as ANSI approved must comply with the ANSI standard. If another type of lens is used, the ANSI approval becomes void.
Respirators and Facial Hair
The standard states that employers cannot permit respirators with tight-fitting facepieces to be worn by employees whose facial hair comes between the sealing surface of the facepiece and the face (where the respirator seal contacts the face). Facial hair must not protrude under the respirator seal, or extend far enough to interfere with the device's function (such as interference with valve function). For Federal OSHA’s interpretation of this issue, see their website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=19355.
Medical Evaluations
The OSHA Respiratory Protection standard 1910.134, under paragraph (e)(2) requires employers to utilize a physician or other licensed health care professional (PLHCP) to perform medical evaluations to determine an employee's ability to use a respirator. The PLHCP may use the medical questionnaire in Appendix C of the standard (or an equivalent) or an initial medical examination. The standard defines a PLHCP as "...an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide, 5 or be delegated the responsibility to provide, some or all of the health care services required by paragraph (e) of this section." This certification is made by the Board of Medicine. Medical doctors and nurse practitioners are the only PLHCPs allowed by the Board to perform such medical evaluations. To view this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=127 16.
CONFINED SPACES (HEADBOX PITS)
A confined space must meet three criteria. First, the space must have limited or restricted means of egress. Second, it must be large enough and so configured that an employee can bodily enter to perform assigned work. Third, it must not be designed for continuous employee occupancy. A Headbox Pit can be a "confined space" (as defined in 1910.146) if it is accessed by ladder, but installation of fixed industrial stairs (if they are complaint with 1910.24) makes the Headbox Pit no longer a "confined space," because it no longer meets the criteria of limited or restricted means of egress. Also, a space cannot be a "permit space" unless it is also a "confined space."
However, even for a "confined space," the inherent hazards of the material flowing through any pipes passing through the space do not have to be considered in the permit space determination if the pipes do not terminate at end use equipment, and there is no reason to believe there is a reasonable probability of a rupture or leak where the contents of the piping would cause a serious safety or health hazard.
EYEWASH STATIONS
The OSHA/VOSH standard, 1910.268(b)(2)(i), is specific for those operations which involve measuring storage battery specific gravity or handling electrolyte. All other operations where an employee's eyes or body could be exposed to injurious corrosive materials would be covered under 1910.151(c). Please also see 1910.268(a)(3).
The relevant source for guidance in protecting employees who may be exposed to injurious corrosive materials is the American National Standard for Emergency Eyewash and Shower Equipment, ANSI Z358.1, specifically the ANSI Standard Z358.1-1998 "Emergency Eyewash and Shower Equipment," which provides guidance for eyewash stations. Plumbed units should be activated weekly to flush the line and verify operation. These units must be tested annually to verify conformance with the ANSI Z358.1 compliance. For self-contained systems, users should refer to the manufacturer's instructions.
The OSHA/VOSH standards are silent on required water temperature for eyewash and shower stations. In addition, 1910.151(c) does not provide specific instruction regarding the frequency of inspecting eyewash stations. However, the 1998 version of ANSI Z358.1 recommends the water be "tepid" but does not give a specific temperature range. In general, water temperatures in the range 27°-35°C (about 80°-95°F) are considered suitable with temperatures in the higher part of the range if extended periods of eye irrigation or showering are required. Tepid water must not exceed 38° C (100° F). A chemical splash should be rinsed for at least 15 minutes but, rinsing time can be up to 60 minutes. The water temperature should be one that can be tolerated for the required length of time. Water that is too cold or too hot will inhibit workers from rinsing or showering as long as they should. In addition, water that is too hot worsen skin or eye damage 6 caused by the accidental exposure to the chemical. In some cases, the heat of the water may also cause a chemical reaction. Employers may want to consult with a physician for further advice.
Copies of ANSI standards may be obtained by contacting ANSI at
American National Standards Institute, Inc. 11 West 42nd Street New York, New York 10036 Phone: (212) 642-4900
SULFURIC ACID SPILLS
For information on procedures for cleaning up sulfuric acid spills, first refer to the manufacturer's material safety data sheet (MSDS) for the product. The MSDS should have a section on the how to clean up spills. Disposal of sulfuric acid and other hazardous substances is regulated by the Virginia Department of Environmental Quality (DEQ). For more information, see the DEQ website: http://www.deq.state.va.us/waste/.
BLOODBORNE PATHOGENS
The 1910.1200 Hazard communication standard (HCS) requires employers to inform employees about chemical hazards in the workplace, and instruct employees on appropriate protective measures to take when working with hazardous chemicals. In addition, VOSH has adopted the Federal OSHA 1910.1030 Bloodborne Pathogens standard, which is designed to protect employees, including health care workers and home health services workers, from occupational exposure to (1) blood or other potentially infectious materials (OPIM), HBV and HIV, (2) contact with skin, eye mucous, membrane, or parenteral contact with other potentially infectious materials, (3) pathogenic microorganisms present in human blood or OPIM which can infect and cause disease in persons exposed to blood containing the pathogen. Pathogenic microorganisms can cause diseases such as hepatitis C, malaria, syphilis, babesiosis, brucellosis, leptospirosis, arboviral infections, relapsing fever, Creutzfeldt-Jakob disease, adult T-cell leukemia/lymphoma (caused by HTLV-I), HTLV-I associated myelopathy, diseases associated with HTLV-II, and viral hemorrhagic fever. The 1910.1030 Bloodborne pathogen standard also has training requirements designed to protect employees from exposure to Hepatitis B Virus (HBV), Human Immunodeficiency Virus (HIV), and other bloodborne pathogens. This standard is designed to protect health care workers who are exposed to blood/other potentially infectious materials. For more information about this standard, see the OSHA website: www.osha.gov/SLTC/bloodbornepathogens/index.html.
Bloodborne Pathogens and Training for Courier Services
Courier services are regulated under the 1910 General Industry Standards. Some of the most frequently cited 1910 standards in the Standard Industrial Classification (SIC) code for courier services can be found on the OSHA web site: http://www.osha.gov/pls/imis/citedstandard.sic?p_esize=&p_state=FEFederal&p_sic=4215.
The 1910 Hazard communication standard (HCS) has training requirements that may apply to courier services. This standard requires employers to inform employees about chemical hazards in the workplace, and instruct employees on appropriate protective measures to take when 7 working with hazardous chemicals. If employees are transporting hazardous substances/materials and there is a container leak or spill, this standard may be applicable. For employees who transport biological specimens and/or sharps contaminated with blood or potentially infectious materials, the employer may be required to comply with portions of this standard. Specifically, employees should be trained on the hazards of the chemical substances and protective measures needed to handle such spills. For more information on this standard, see the OSHA website: www.osha.gov/SLTC/hazardcommunications/index.html .
Exposure Incidents
The employee is responsible for reporting any exposure incidents to the employer. Reporting procedures must be included in the employer's exposure control plan and addressed during the employee's training. If the employee does not report an exposure incident, but the employer receives the report from another source, the employer is responsible for investigating the incident and taking appropriate action. Requirements for post-exposure evaluation and follow-up can be found in 1910.1030(f)(3).
Home Health Services
For home health services in private homes, the employer is not held responsible for the following site-specific conditions: housekeeping requirements, such as maintenance of a clean and sanitary worksite and handling and disposal of regulated waste; ensuring the use of personal protective equipment; and ensuring that specific work practices are followed (e.g., handwashing with running water) and ensuring the use of engineering controls.
Contaminated Laundry
Requirements for handling contaminated laundry are found at 1910.1030(d)(4)(iv)[A] - [C].
OSHA’s Compliance Directive CPL 2-2.69, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens, makes reference to the CDC publication "Guidelines for Laundry in Health Care Facilities." (See section D. Methods of Compliance, items 37. - 41.) For more information, see OSHA’s website: http://www.cdc.gov/od/ohs/biosfty/laundry.htm.
Urine
Urine is not automatically covered by the 1910.1030 Bloodborne pathogens standard. For urine to be classified as potentially infectious, blood must be visibly present or the presence of blood reasonably anticipated due to the client having a medical condition that would lead to blood in the urine. Worker exposure to urine contaminated with blood requires full compliance with the standard, if employees are required to perform tests and/or dispose of the urine. Compliance includes employee training on the standard’s requirements for provision of personal protective equipment as well as proper handling and disposal of regulated waste. The standard does not address where urine testing should be done, and only requires the employer to protect employees from occupational exposure to blood and OPIM when the urine specimen is handled. The 1910.141 Sanitation standard requires that washing facilities be maintained in a sanitary condition. VOSH has no regulations other than these two standards which address urine testing. 8 Mattresses and Mattress Pads
There are no OSHA/VOSH standards that require a mattress pad to be sold with a mattress.
Furthermore, OSHA/VOSH has no authority over the merchant/customer relationship.
Contaminated Needles, Sharps, Sponges, and Laps
The 1910.1030 Bloodborne Pathogen standard has requirements for disposal of contaminated sharps. Healthcare facilities and other places of employment are required to place contaminated sharps in closable, puncture resistant, leakproof containers. These containers must be labeled or color-coded to indicate that the contents are bloodborne pathogenic materials. If an employer is found in violation of this requirement, VOSH will issue citations which may have monetary penalties. Once the contaminated sharps and other types of regulated waste have left the facility, the handling of this waste falls under the domain of the Virginia Department of Environmental Quality (DEQ). DEQ's regulations regarding the disposal of medical waste may be viewed on their web site: http://www.deq.virginia.gov/waste/medical.html.
The bloodborne pathogens standard defines regulated waste as liquid or semi-liquid blood or other potentially infectious material (OPIM); contaminated items that would release blood or OPIM in a liquid or semi-liquid state if compressed; items that are caked with dried blood or OPIM and are capable of releasing these materials during handling; contaminated sharps; and pathological and microbiological wastes containing blood or OPIM. The requirements for the handling and disposal of regulated waste are found in paragraph (d)(4)(iii) of this standard. To view the 1910.1030 Bloodborne pathogen standard, see the OSHA website: www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=10051.
In addition, the Virginia State Police http://www.vsp.state.va.us/ and local police departments may have reporting requirements for the discovery of improperly discarded sharps and needles.
Maintenance, Janitorial, or Housekeeping Staff
VOSH does not generally consider maintenance/janitorial/housekeeping staff employed in non-health care facilities to have occupational exposure. However, it is the employer's responsibility to determine which job classifications or specific tasks and procedures involve occupational exposure. If VOSH determines, on a case-by-case basis, that sufficient evidence exists of reasonably anticipated exposure, the employer will be held responsible for providing the protections of 1910.1030 to the employees who come in contact with regulated waste. VOSH does not have jurisdiction over federal employers, such as NASA.
For staff whose jobs involve cleaning up discarded feminine hygiene products, OSHA does not generally consider such items to be regulated waste. The products are designed to contain blood.
They are made of absorbent material which, in most instances, prevents release of liquid/semi-liquid blood or the flaking off of dried blood. However, the waste containers into which these products are discarded must be lined with a plastic or wax paper bag to protect employees from physical contact with the contents. Employers must provide suitable gloves for employees who handle the contents. Employers are also responsible for determining the existence of regulated waste. The determination cannot be based on actual volume of blood, but on the potential to release blood, e.g. when compacted in the waste container. OSHA determines, on a case-by-case 9 basis, if sufficient evidence of regulated waste exists, e.g., through such visual factors as a pool of liquid in the bottom of a container or dried blood flaking off during handling, or based on employee interviews. Further, if an employee under age 18 is employed in a position involving cleaning up such items, the workplace conditions may violate Virginia’s child labor laws. In such a case, it would be advisable to contact the Department’s Labor and Employment Law Division.
Nursing Homes
The Bloodborne pathogen standard, 1910.1030, requires source individuals to be tested for HBV or HIV when an employee experiences an exposure incident, i.e. a needle stick or blood splash to the eyes or mucous membranes. Employees should also be advised when they enter rooms in which patients with known or suspected infectious TB are being isolated to ensure that proper respiratory protection is worn. Outside these two scenarios, there are no federal OSHA or VOSH policy or guidelines which require that employers supply patient information to health care staff.
The Bloodborne Pathogens standard, 1910.1030 requires use of engineering controls and personal protective equipment to prevent employee exposure to bloodborne pathogens and other potentially infectious materials when providing patient care in nursing homes. This standard requires the use of universal precautions to control infection. The term "Universal Precautions" refers to a concept of bloodborne disease control which requires all human blood and certain human body fluids to be treated as if known to be infectious for HIV, HBV, or other bloodborne pathogens. Blood and tissue must be handled in the same manner regardless of a patient's perceived or known risk. Employers must use sharps with built-in safety features or mechanisms that reduce the risk of a needle stick or percutaneous injury. The employer must select and provide for employees appropriate personal protective equipment, such as gloves, gowns, laboratory coats, face shields or masks and eye protection, when they are performing tasks which would expose them to blood and other potentially infectious materials. Employers should make the hepatitis B vaccine available to employees who have occupational exposure. For more information, see OSHA’s website: http://www.osha.gov/SLTC/bloodbornepathogens/index.html.
In regard to TB exposure, OSHA's compliance directive, CPL 2.106, Enforcement Procedures and Scheduling for Occupational Exposure to Tuberculosis, focuses on worksites identified by the Centers for Disease Control and Prevention (CDC) as those where risk was considered the highest. This instruction is not a "mandate," nor is it a final OSHA standard applicable to any particular segment of the health care industry. Rather, it is a directive to clarify the application of the General Duty Clause when inspecting facilities identified as belonging in these high hazard groups. The directive focuses on workplaces, such as long-term care facilities, where risk was considered the highest. For more information on occupational exposure to TB, see the OSHA website: http://www.osha.gov/SLTC/tuberculosis/standards.html .
Funeral Homes, Construction and Operation
There are no specific OSHA or VOSH standards for the funeral home industry that govern the type of flooring material used in embalming prep rooms. The funeral home industry is regulated under the 1910 General industry standards. Section (d)(4)(ii)[A] of the 1910.1030 Bloodborne pathogens standard requires that surfaces be cleaned and disinfected as soon as possible after any spill with blood or other potentially infectious materials and at the end of the work shift if the surface has been contaminated since the last cleaning. The selection process should consider 10 flooring that is easy to clean and decontaminate. Some of the most frequently cited 1910 General industry standards in the Standard Industrial Classification (SIC) code for the funeral service industry can be found on the OSHA web site: www.osha.gov/pls/imis/citedstandard.sic?p_esize=&p_state=FEFederal&p_sic=7261.
Some of the applicable general industry standards for the funeral services industry include the 1910.1030 Bloodborne pathogens standard, the 1910.1048 Formaldehyde standard, the 1910.134 Respiratory protection standard, and the 1910.1200 Hazard communication standard. To view safety and health topics regarding these standards, see OSHA's website at www.osha.gov.
The US Department of Health and Human Services (DHHS), National Institute for Occupational Safety and Health (NIOSH) Publication No. 98-149, (1998, October) describes a local exhaust ventilation system for controlling formaldehyde exposures during embalming. To view that document, see the following website: www.cdc.gov/niosh/hc26.html.
Conducting Bloodborne Pathogens Training
The 1910.1030 Bloodborne pathogens standard has no certification requirement for the person conducting training. Section (g)(2)(viii) of the standard requires the trainer to be knowledgeable in the subject matter covered by the elements in the training program as it relates to the workplace the training will address. Section (g)(2)(vii) lists the elements that must be included in the training program, including explanations of symptoms and modes of transmission of bloodborne diseases, location and handling of personal protective equipment, information on the hepatitis B vaccine, and follow-up procedures to be taken in the event of an exposure incident.
Showers/Handwashing Facilities
The 1910.1030 Bloodborne pathogen standard does not have a specific requirement for showers.
However, under paragraph (d)(2)(iii), the employer is required to provide handwashing facilities which are readily accessible to employees. To view this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=100 51 .
ORGANIC SOLVENTS AND LOWER EXPLOSIVE LIMIT (LEL’S)
VOSH has adopted the federal identical standard 1910.106, which explains the requirements for handling, storage and use of flammable and combustible materials. To view this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=975 2 . VOSH has also adopted the federal identical 1910.107, Spray finishing using flammable and combustible standard, which applies to LEL coatings used in spray operations. To view this standard, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=975 3 .
Mechanical ventilation is the primary means of keeping flammable/combustible materials below their LEL’s during spray operations. The vapor concentration of the organic solvent in the spray area must be maintained at a level below 25 percent of its LEL. A power-ventilated structure, 11 such as a spray booth, should be used to enclose or accommodate spraying operations when spraying flammable and combustible materials. The ventilation system must confine and remove vapors and mists to a safe location and also confine and control combustible residues, dusts, and deposits. See the OSHA website: http://www.osha.gov/SLTC/sprayoperations/index.html .
CONCENTRATIONS OF LEAD, CHROMIUM AND CADMIUM IN PAINT
VOSH has adopted the federal identical OSHA standards for concentrations of lead, chromium and cadmium in paint. These standards apply to all occupational exposures to these substances.
Compliance with these standards is required at any detectable concentration and when there is a potential that they could be released in airborne concentrations which would exceed their respective permissible exposure limits. (The concentration of lead defined by the Consumer Products Safety Commission as non-lead containing is 0.06% and below.)
VOSH primarily relies on airborne measurements to determine employee exposure. VOSH does not consider any method that relies solely on the analysis of bulk materials or surface content of lead, chromium and cadmium (or other toxic material) to be acceptable for safely predicting employee exposure to airborne contaminants. Without air monitoring results or without the benefit of historical or objective data (including air sampling which clearly demonstrates that the employee cannot be exposed above the action level during any process, operation, or activity), the analysis of bulk or surface samples cannot be used to determine employee airborne exposure.
ASBESTOS
Asbestos: General
VOSH has adopted the federal identical OSHA 1926.1101 Asbestos construction standard. An inspection in compliance with the AHERA regulations (40 CFR 763) satisfies the requirements under 1926.1101(k)(1) and (k)(2) for a building owner to determine and inform employers of the presence, location, and quantity of ACM or PACM at work sites in their buildings. Under 1926.1101(k)(5)(ii)[A], a building owner may use an AHERA inspection to demonstrate that PACM does not contain more than one percent asbestos. Paragraph (k)(5)(ii)[B] of 1926.1101 also allows the building owner to rebut the designation of installed material as PACM. The test must include an analysis of bulk samples collected in the manner described in the AHERA regulation, 40 CFR Part 763.86. The AHERA regulation bases its sampling requirements on homogeneous areas, i.e. surfacing, thermal, or miscellaneous material that is uniform in color and texture. The AHERA inspector should apply his or her knowledge and experience and consider all relevant factors pertaining to a particular situation in determining the appropriate number of samples "sufficient to determine" the presence of ACM.
The EPA Asbestos NESHAP requires that, before demolition or renovation activities, a thorough inspection be conducted to determine the presence of asbestos. If the AHERA inspector collected only one sample of a PACM that was alike in color and texture ( a homogeneous area), and the analysis was negative, that one sample may not be sufficient to accurately determine whether asbestos is present in the area subject to demolition or renovation, even though it appears to be the same color and texture. Therefore, the EPA and VOSH recommend that additional samples be collected, such as described in the 3-5-7 sampling rule. 12 Asbestos Physicals
Both the 1910.1001 general industry and the 1926.1101 construction industry standards for asbestos require that medical exams be made available at least annually, when such are required by the standard. Under the 1910.1001 general industry standard, the scope of medical exam is found in paragraph (l)(2)(ii), except that the frequency of chest roentgenogram shall be conducted in accordance with Table-2 at 1910.1001(l)(3)(ii). The 1926 construction standard, in paragraph (m)(2)(i)[D], leaves the frequency of additional examinations to the discretion of the examining physician. To download copies of these standards, see the OSHA website: 1910.1001: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=999 5 1926.1101: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=108 62
Asbestos disposal in large facility components Under the National Emission Standards for Hazardous Air Pollutants, or NESHAP, Section 61.145(c)(5) states that, for large facility components such as reactor vessels, large tanks and steam generators, but not beams, regulated asbestos containing material (RACM) is not required to be stripped if the following requirements are met:
The component is removed, transported, stored, disposed of, or reused without disturbing or damaging the RACM;
The component is encased in a leak-tight wrapping; and
The leak-tight wrapping is labeled according to Section 61.149(d) (1) (i), (ii), and (iii) during all loading and unloading operations and during storage.
Pursuant to Section 61.150(a), the standard for waste disposal requires there be no discharge of visible emissions to the outside air during collection, processing, packaging, or transporting of any asbestos-containing waste material. In addition (see Section 61.150(a)(1)(ii)), the asbestos-containing waste must be made adequately wet without discharging visible emissions to the outside air from collection, mixing, wetting, and handling operations and must be sealed in “leak-tight” containers while wet. The regulations do not define what a "leak-tight” container is, but stipulate that no visible emissions may occur during the disposal process. The regulations allow the use of various types of containers which can be accurately described as "leak-tight” if they are designed to prevent visible emissions or leaks.
Collectively, the regulations require that asbestos-containing material be disposed of in a manner which prevents visible emissions to outside air at any time during the disposal process, including collection, handling and packaging at the abatement site, transportation from the abatement site to the disposal facility, and during unloading and processing operations at the disposal site.
Asbestos and Air Monitoring
The Construction Industry Asbestos Standard, 1926.1101, requires that employers conduct air 13 monitoring to determine employee exposure levels when they perform work operations where asbestos-containing material is being disturbed or removed. Monitoring is done by collecting air samples in the employee's breathing zone as close as possible to the employee’s nose and mouth.
Air monitoring should be done during work operations which may disturb asbestos-containing material. Unfortunately, after the construction activity has been completed, it is not possible to make an assessment of what airborne concentrations of asbestos existed during construction.
However, air monitoring and/or surface contamination testing could be done to determine if the building or any facility components are still contaminated with asbestos.
In regards to asbestos, facilities such as schools are required to have Asbestos Management Plans that detail where asbestos is located and how it will be managed. This requirement is in the Asbestos Hazard Emergency Response Act (AHERA), which is enforced by the Environmental Protection Agency (EPA). This law also requires that employees be given access to this information. The Virginia Department of Labor and Industry does not enforce this law.
Homeowners Removing Asbestos
Category II nonfriable asbestos material is not considered regulated asbestos-containing material if the material is not crumbled, pulverized or reduced to powder during the demolition or renovation. VOSH regulations do not apply to homeowners who do work on their own property and are not compensating other individuals to assist them in this work. These regulations only cover work sites where there is an employer/employee relationship. For more information, see the OSHA website: http://www.osha.gov/SLTC/constructionasbestos/index.html.
However, it is recommended that major repair/renovation work be done only by a professional trained in methods of safely handling asbestos. When homeowners choose to handle asbestos containing material in their own homes, it is highly recommended that they follow the work practices and controls that a trained abatement contractor would use when handling this material.
For more information, see the EPA website: http://www.epa.gov/asbestos/pubs/ashome.html.
The Virginia Department of Environmental Quality (DEQ) regulates Disposal of asbestos containing material. For information on proper disposal of such material, contact DEQ: http://www.deq.state.va.us/regions/homepage.html.
In addition, there may be local ordinances which may apply to this situation.
Asbestos NESHAP and Buildings to be Demolished
For situations where the asbestos NESHAP does not apply but asbestos is present in the building(s) to be demolished, it would be prudent to handle asbestos containing material as if the situation were regulated. All asbestos containing material should be kept wet at all times, asbestos material should be separated where safe to do so, and disposed of in a facility approved to accept asbestos waste. Although not required by regulation, these steps are practical measures to protect workers and nearby residents from inadvertent asbestos exposure.
SHOWERS
There are OSHA/VOSH standards which require showers. For example, 1910.151(c) states that 14 "where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use." Other standards which require showers include, but are not limited to the 1910.1001 Asbestos standard, the 1910.1025 Lead standard, and the 1910.1048 Formaldehyde standard. Shower requirements in these standards are triggered when employees are exposed to levels above established permissible exposure limits (PELs) for these substances, or if there is potential for employees' skin to be splashed with these chemicals. When showers are required by an OSHA/VOSH standard, they must meet the requirements of the general industry sanitation standard, 1910.141(d)(3), which may be viewed on the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=979 0 .
VETERINARIANS
There are no VOSH/OSHA standards specific to veterinary medicine. The practice of veterinary medicine is covered by the 1910 General Industry standards. The 1910 standards that would be applicable depend on hazards specific to each worksite. Some hazards frequently found in veterinary services are covered by the following regulations: Formaldehyde (1910.1048), Hazard Communication (1910.1200), Personal Protective Equipment (1910.132), and Electrical (1910.305). OSHA’s website lists the most frequently cited standards for veterinary services: http://www.osha.gov/pls/imis/citedstandard.sic?p_esize=&p_state=FEFederal&p_sic=0742 .
For more information, see: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=21470 .
In addition, to view the 1910 General Industry standards, see OSHA's web site: www.osha.gov .
MATERIAL SAFETY DATA SHEETS (MSDS)
Maintenance of material safety data sheets (MSDS) is governed by the federal identical Hazard Communication standard, 1910.1200. The MSDS must be resubmitted if the MSDS is updated or changed to contain new or significant information about a chemical's hazards. These provisions are detailed in section (g)(7) of the Hazard Communication Standard. OSHA has interpreted the MSDS availability requirement to allow the use of computers, telefax or any other means, as long as a readable copy of the MSDS is available to workers while they are in their work areas, during each workshift. Employees must have access to hard copies of the MSDSs. In the event of medical emergencies, employers must be able to immediately provide copies of MSDSs to medical personnel. For more information, see the OSHA website:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=22627 and http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=20004 .
Information regarding the requirements for an MSDS sheet can be found on the Federal OSHA web site: http://www.osha.gov/SLTC/hazardcommunications/index.html. 15
HAZARDOUS SUBSTANCES AND HAZARD COMMUNICATION
A hazardous chemical, as defined by the OSHA 1910.1200 Hazard Communication Standard (HCS), is any chemical which can cause a physical or health hazard. VOSH has adopted the federal identical HCS, which defines "Health hazard" as a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with scientific principles, that acute or chronic health effects may occur in exposed employees. The term "health hazard" includes chemicals which are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents which act on the hematopoietic system, and agents which damage the lungs, skin, eyes or mucous membranes. To determine if a chemical used in the workplace is hazardous, first obtain a copy of the material safety data sheet (MSDS) from the manufacturer of that particular chemical. The standard requires chemical manufacturers to prepare an MSDS to ensure that employers and employees are informed about the physical and health hazards of workplace chemicals. The MSDS provides information on essentially everything known about the chemical, including detailed information on potential hazardous effects, physical and chemical characteristics, and recommendations for appropriate protective measures. For more information, see the OSHA website: www.osha.gov/SLTC/hazardcommunications/index.html.
If the hazardous chemicals are transferred into unmarked containers, these containers must be labeled with the required information, unless the container into which the chemical is transferred is intended for immediate use by the employee who performed the transfer. If a hazardous chemical from a labeled container is transferred into another container and the chemical is not intended for immediate use by the employee who performs the transfer, then the employer must ensure the new container is labeled properly. The hazard communication standard allows the employer to use an alternative labeling method as long as the written Hazard Communication Program adequately addresses the issue. The purpose of the identity label is to provide a link back to the manufacturer of the hazardous substance and the MSDS. The employer is not only required to comply with the standard’s labeling requirements, but an MSDS must be maintained for the hazardous chemicals used in the workplace. To view a federal OSHA interpretation letter which addresses these issues, see the OSHA website: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_ id=21155 .
The web site link to OSHA's compliance directive Inspection Procedures for the Hazard Communication Standard, (CPL 2-2.38C) includes a discussion of other issues regarding the hazard communication standard: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1551
Employers who buy a consumer product for workplace use are not required to have an MSDS for the product if their employee's workplace use of the chemical is or will be as a consumer would use it. If the workplace use is of greater frequency or duration than normal consumer use, the employer must obtain an MSDS for the chemical and make it available to the employees.
AIR CONTAMINANTS AND AIR QUALITY
VOSH has adopted the federal OSHA identical Subpart Z -Toxic and Hazardous Substances, 1910.1000 Air contaminants standard. The VOSH unique standards may be viewed on the 16 Department’s website: www.doli.virginia.gov/infocenter/publications/vaunique_p2.html .
OSHA/VOSH regulations that specifically address indoor air quality as it relates to exposure to regulated air contaminants are addressed in specific general industry standards. However, there are currently no specific OSHA/VOSH regulations or directives specific to workplace indoor air quality in general. On December 17, 2001 federal OSHA withdrew its Indoor Air Quality (IAQ) proposal and terminated the rulemaking proceeding. For information on indoor air quality, see the OSHA website: http://www.osha.gov/SLTC/indoorairquality/index.html.
An employee who suspects that there is an exposure to a regulated carcinogenic agent in the workplace, may report this condition to the Department’s Regional Office that is nearest to the workplace. Employees can also request a Health Hazard Evaluation by the National Institute for Occupational Safety and Health (NIOSH) when there is an exposure to an agent not regulated by OSHA or when employees have an illness from an unknown cause. For information about the NIOSH Health Hazard Evaluation Program, see their website: http://www.cdc.gov/niosh/hhe/HHEprogram.html.
In the absence of Federal and/or state regulations addressing general indoor air quality in the workplace, VOSH does respond to such concerns through our non-formal complaint process, a phone/fax investigation. The complaint is handled by letter. We encourage the employer to evaluate the workplace environment and make necessary corrections or modifications.
MOLD
There are currently no specific OSHA/VOSH regulations/directives for mold in the workplace.
Exposure to regulated air contaminants are addressed in specific standards for general industry.
For more information about indoor air quality, see the OSHA website: http://www.osha.gov/SLTC/indoorairquality/index.html.
Additional information on mold in general can be found on the Mold and Fungi Technical Links page on federal OSHA's website: http://www.osha.gov/SLTC/molds/index.html.
In the absence of federal and/or state regulations addressing mold in the workplace, VOSH does respond to such concerns through our non-formal complaint process, a phone/fax investigation.
The complaint is handled by letter. We encourage the employer to evaluate the workplace and make necessary corrections or modifications.
GASOLINE VAPORS IN THE AIR
Sampling media, such as detector tubes, can be used to measure the concentration of gasoline vapors in the air. Combustible gas meters can also be used to test for the presence of gasoline vapors to alert employees of a potential hazard due to flammability/explosion. For occupational safety and health information on gasoline, see the OSHA website at: http://www.osha.gov/dts/chemicalsampling/data/CH_243100.html .
SMOKING IN THE WORKPLACE
There are currently no federal OSHA or Virginia Occupational Safety and Health (VOSH) regulations concerning smoking in the workplace, except for instances where a fire or explosion 17 could result from their improper use, e.g. use of flammable solvents. There are some state laws regulating smoking under some conditions. For information on these rules, see the following website: http://leg1.state.va.us/cgibin/legp504.exe?000+cod+TOC15020000028000000000000.
The Virginia Safety and Health Codes Board adopts regulations under instruction from the Virginia General Assembly. The Board has not, at this time, been instructed by the General Assembly to adopt a regulation regarding secondhand smoke. In the 2005 General Assembly Session legislation was proposed, Senate Bill 1191, to prohibit smoking in most buildings or enclosed areas frequented by the public. However, this bill was defeated. Information on this bill is available via the following URL link: http://leg1.state.va.us/cgi-bin/legp504.exe?ses=051&typ=bil&val=sb1191.
TOILET FACILITIES AT BUILDING SITES (PORTABLE TOILETS)
The Virginia Occupational Safety and Health (VOSH) Construction Standard for Sanitation requires employers to provide toilet and handwashing facilities for employee use. A copy of this standard is available on the Department’s website: http://www.doli.virginia.gov/infocenter/publications/va_unique/16vac25-160.pdf.
To report conditions which impact employee safety and health at the workplace, contact the Department's Regional Office which is nearest to the worksite.
The use of portable toilets is acceptable in the following circumstances: (1) the lack of water or temporary nature of the installation makes water carriage systems impracticable; (2) the portable toilets are readily accessible by employees; (3) the portable toilets have adequate lighting, are secure, and have heating as necessary; and (4) they are well-maintained and properly serviced.
Hand-washing facilities must be provided in all situations.
FOOD SANITATION
The Virginia Occupational Safety and Health (VOSH) program does not have jurisdiction over matters involving food sanitation. For matters involving food sanitation, contact the Virginia Department of Health regarding the interpretation of the State's Health Department regulations. (http://www.vdh.state.va.us/oehs/food/index.htm)
HEAT STRESS
OSHA/VOSH has no specific regulations regarding heat stress, but we recognize the importance of protecting employees from exposure to weather/extreme temperatures when these are health or safety hazards. OSHA provides guidance (which VOSH endorses) on recognition, evaluation, and control of heat stress hazards, and appropriate compliance actions. For information on heat stress, see the OSHA website: http://www.osha.gov/SLTC/heatstress/index.html. Information about heat and sun hazards can also be found on websites of the Centers for Disease Control and Prevention: http://www.bt.cdc.gov/disasters/extremeheat/index.asp and the National Institute for Occupational Safety and Health: http://www.cdc.gov/niosh/topics/heatstress/http://www.osha.gov/SLTC/heatstress/standards.html. 18 Although VOSH has no specific regulations on heat stress hazards, the General Duty Clause requires each employer to, "furnish to each of his employees safe employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." VOSH uses the General Duty Clause to cite employers who expose employees to potential serious physical harm from excessively hot work environments. Citations for General Duty Clause violations are issued only if there is no specific OSHA/VOSH standard that addresses the recognized hazard and if the four components of the provision are present. The four components are: 1) the employer failed to keep the workplace free of a "hazard;" 2) the hazard was "recognized," by the cited employer or by the employer's industry generally; 3) the recognized hazard was causing or likely to cause death or serious physical harm; and 4) there was a feasible means available to eliminate or materially reduce the hazard.
OCCUPATIONAL SAFETY AND HEALTH IN HEALTH CARE FACILITIES
Healthcare facilities are regulated under the 1910 General Industry standards. For the most part, the Virginia Occupational Safety and Health (VOSH) Program has adopted the federal identical OSHA 1910 General Industry standards. For information on occupational safety and health care in health care facilities, see the OSHA website: http://www.osha.gov/SLTC/healthcarefacilities/index.html.
There are a few Virginia unique standards which are explained on the Department's web site: http://www.doli.state.va.us/infocenter/publications/vaunique_p1.htm.
CONTAGIOUS DISEASES
There are no federal OSHA or Virginia Occupational Safety and Health (VOSH) regulations which address employee to employee transmission of communicable diseases in the workplace.
However, the Virginia Department of Health’s Office of Epidemiology has regulations which require the reporting and isolation of individuals with certain communicable diseases that may pose a public health hazard. This standard protects both co-workers and members of the public with whom that individual may have contact. Local health departments may also have quarantine requirements for individuals who have been diagnosed with some types of contagious diseases.
The Virginia Department of Health and/or your local health department would be able to determine if an individual’s diagnosis requires a quarantine protocol. The Virginia Department of Health's Office of Epidemiology may be contacted at 804-864-8141. For more information, see their website: http://www.vdh.state.va.us/epi/newhome.asp. It may also be helpful for an individual to contact his or her physician for additional information.
SAFETY AND HEALTH REGULATIONS FOR NURSING STAFF AGENCY
There are numerous Virginia Occupational Safety and Health (VOSH) standards which may apply to nursing staff. Some of the more common standards include Bloodborne Pathogens (1910.1030), Hazard Communication (1910.1200), and the VOSH Safety and Health Poster. For more information, see the Department’s website: http://www.doli.state.va.us/infocenter/publications/reqposters_p1.html). Additional information on safety and health standards in the health care field is posted on the federal OSHA web site: http://www.osha.gov/SLTC/healthcarefacilities/index.html. Also, the VOSH Program does offer consultation services to help employers better understand and voluntarily comply with the VOSH standards. For more information on VOSH's consultation services, see the Department’s website 19 at: http://www.doli.state.va.us/whatwedo/coop_prog/consultation.html.
OCCUPATIONAL SAFETY AND HEALTH REGULATIONS FOR PHYSICIANS AND
MEDICAL EQUIPMENT
Although there are no OSHA regulations specific to medical equipment, there are some OSHA 1910 General Industry standards that address safety requirements to safeguard employees. These include: 1910.146, The control of hazardous energy (lockout/tagout), 1910.212, Machine guarding, and 1910.301 to 1910.399, Electrical. To view these regulations, see Federal OSHA's web site: www.osha.gov. See also OSHA’s publication, Medical & Dental Offices: A Guide to Compliance with OSHA Standards: http://www.osha.gov/Publications/osha3187.pdf.
Typically, the Food and Drug Administration (FDA) evaluates whether medical equipment meets purported treatment objectives in a way that does not endanger patients, while OSHA is responsible for ensuring that medical equipment is safe for use by employees in the workplace.
WATER PURIFICATION – SEWAGE TREATMENT PLANTS
There are two VOSH standards which address non-potable water. The sanitation standard for general industry, 1910.141(b)(1), requires employers to provide potable water in the workplace for drinking, washing of the person, cooking, washing or foods, washing of cooking or eating utensils, washing of food preparation or processing premises, and personal service rooms. The sections in the 1910.141 sanitation standard do not imply that a chlorine residual is to be maintained in a NPW system at a sewage treatment plant. The requirements of sections (b)(2)(i)-(b)(2)(iii) are intended to ensure that employees are aware that water from such sources is not suitable for the purposes stated above.
The only potential basis is in the VOSH regulations under the VOSH sanitation standard for general industry (1910.141(b)(2)), quoted below:
"Nonpotable water. 1910.141(b)(2)(i)
Outlets for nonpotable water, such as water for industrial or firefighting purposes, shall be posted or otherwise marked in a manner that will indicate clearly that the water is unsafe and is not to be used for drinking, washing of the person, cooking, washing of food, washing of cooking or eating utensils, washing of food preparation or processing premises, or personal service rooms, or for washing clothes.
- 141(b)(2)(ii)
Construction of nonpotable water systems or systems carrying any other nonpotable substance shall be such as to prevent backflow or backsiphonage into a potable water system.
- 141(b)(2)(iii)
Nonpotable water shall not be used for washing any portion of the person, 20 cooking or eating utensils, or clothing. Nonpotable water may be used for cleaning work premises, other than food processing and preparation premises and personal service rooms: Provided, That this nonpotable water does not contain concentrations of chemicals, fecal coliform, or other substances which could create unsanitary conditions or be harmful to employees.
VOSH has adopted the federal OSHA identical 1910.141 Sanitation standard, which may be viewed or downloaded at the OSHA web site: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=979
The VOSH construction industry standard for sanitation (16VAC25-160-10), which is a Virginia unique standard, may viewed or downloaded at the following DOLI web site: http://www.doli.virginia.gov/infocenter/publications/va_unique/16vac25-160.pdf.
This standard states
"(b) Nonpotable water
(1) Outlets for nonpotable water, such as water for industrial or firefighting purposes only, shall be identified by signs meeting the requirements of Subpart G of this part (16VAC25-175-1926.200 et seq.), to indicate clearly that the water is unsafe and is not to be used for drinking, washing, or cooking purposes.
(2) There shall be no cross-connection, open or potential, between a system furnishing potable water and a system furnishing nonpotable water."
Outside of these requirements, there are no other VOSH standards which regulate non-potable water.
FIRST AID
The Virginia Occupational Safety and Health (VOSH) Program’s jurisdiction only extends to matters regarding occupational safety and health in the workplace. VOSH requirements for first aid training only apply in situations when first aid is administered to employees who suffer an injury or illness at the workplace. The OSHA website lists the Guidelines for First Aid Training Programs that are used to evaluate first aid training in the context of workplace inspections: www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1568.
Although they may be similar, the VOSH first aid training requirements do not apply in situations when first aid is administered to non-employees, such as children in day care facilities.
Children in day care facilities are not employees and are not covered by VOSH regulations. To learn about specific training requirement criteria for administering first aid to children in day care facilities, contact the Virginia Department of Social Services' Child Care Licensing Section at 1-800-543-7545 or visit their web site at www.dss.virginia.gov.
ERGONOMIC RULES
Neither federal OSHA nor the Virginia Occupational Safety and Health (VOSH) Program has a 21 specific ergonomic standard. The VOSH Program may cite employers for ergonomic hazards under the General Duty Clause and/or issue ergonomic hazard alert letters where appropriate. For more information, see the OSHA website: http://www.osha.gov/SLTC/ergonomics/index.html.
MICROWAVE OVENS
Neither OSHA nor the VOSH Program has specific standards that regulate microwave ovens.
OSHA regulates exposure to nonionizing radiation in its General Industry standard, 29 CFR 1910.97. This standard specifies that worker exposure to nonionizing radiation not exceed 10 mW/cm2 in the frequency range 10 MHz to 100 GHz (defined in the standard as radio frequency/microwave radiation). The VOSH Program has adopted the same requirement under its State plan. When applicable, the VOSH Program would address compliance with the 1910.97 Nonionizing radiation standard during the course of these inspections.
All new microwave ovens produced for sale in the United States must meet the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) performance requirements in Title 21, CFR, Part 1030.10. This requirement states that new ovens may not leak microwave radiation in excess of 1 mW cm2 at 5 cm from the oven surface. It also states that ovens, once placed into service, may not leak microwave radiation in excess of 5 mW cm2 at 5 cm from the oven surface. The "Procedure for Field Testing Microwave Ovens" (HEW Publication (FDA) 77-8037) is the standard method for verifying that these oven performance criteria are met. Various nonionizing radiation survey meters are used to evaluate microwave exposure. The frequency ranges covered by OSHA's instruments are: 10 Hz to 300 kHz, 0.5 MHz to 6000 MHz, 6 GHz to 40 GHz, and the 2.45 GHz microwave oven frequency. These instruments are capable of measuring the electric field strength (E-field), magnetic field strength (H-field), or both depending on the instrument. If an employer is not found in compliance with the 1910.97 Nonionizing radiation standard, that employer could be subject to VOSH citations which may carry monetary penalties. For more information, contact the FDA/CDRH at the following address: Food and Drug Administration Center for Devices and Radiological Health 5600 Fishers Lane Rockville, Maryland 20857-001 Telephone: 1-888-INFO-FDA (1-888-463-6332) www.fda.gov/default.htm 22
Virginia Wage Theft Investigation PolicyDoc ID: Requesting
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COMMONWEAL TH of VIRGINIA
DEPARTMENT OF LABOR AND INDUSTRY
C. Ray Davenport
Main Street Centre
COMMISSIONER
600 East Main Street, Suite 207
Richmond, Virginia 23219
PHONE (804) 371-2327
FAX (804) 371-6524
May 2, 2016
POLICY MEMORANDUM
TO
Wendy Inge, Director
Division of Labor and Employment Law
Labor and Employment Law St
FROM
C. Ray Davenport
Commissioner
hay
SUBJECT
REQUESTING EMPLOYMENT RECORDS IN WAGE CLAIM
INVESTIGATIONS
PURPOSE
In furtherance of the Department's mission to make Virginia a better place to work, live and
conduct business, the following policy is being adopted to assure to the fullest extent of the law
that employees in the Commonwealth receive full compensation for the wages they have earned
Commonly known as "wage theft", employer's failure to promptly pay wages owed places a
tremendous economic and social burden on Virginia's workers and their families
The policy is intended to give guidance and direction to the Department's Labor and
Employment Law staff in situations where a covered employer, alleged to have failed to pay
wages owed, either refuses to provide required records in its possession, or is unable to provide
records because they failed to maintain them as required by either Virginia Employment
Commission (VEC) or Fair Labor Standards Act (FLSA) laws and regulations
POLICY
The Department will undertake an outreach program to employers and employees to explain this
labor law employment records request policy and the procedures that will be implemented June
1, 2016. Outreach efforts will include, but not be limited to, posting of this policy on the
Department's website, www.doli.virginia.gov, and a public service announcement
--- Page 2 ---Covered employers are required to keep records on the pay of their FLSA non-exempt employees by VEC regulations and by the federal FLSA. The Department, in trying to resolve payment of wage claims, regularly requests such pay records that employers are otherwise required to keep (see Commissioner's authority to require employers to make available records as are deemed necessary for proper enforcement of Title 40.1 of the Code of Virginia, Va. Code § 40.1-6(7)). Some employers refuse to produce the records or claim they do not have them.
In order to facilitate quicker resolution of wage claims, the following policy is adopted for use by
the Division of Labor and Employment Law
l. Upon request, employers shall provide to the Commissioner all employment records they are otherwise required to keep by provisions of state or federal law that contain all or significantly all of the following requirements:
a. Employee's Name in full;
b. Regular hourly rate of pay;
C; Hours worked each workday and total hours worked each workweek. For purposes of this policy, "workday" means any fixed period of 24 consecutive hours, and "workweek" means any fixed and regularly recurring period of seven consecutive workdays;
d. Total daily or weekly earnings or wages due for hours worked during the workday or workweek;
é Total additions to or deductions from wages paid each pay period, including, in individual employee records, the dates, amounts, and nature of the items that make up the total additions and deductions;
f. Total wages paid each pay period; and
g. Date of payment and the pay period covered by payment.
- Should the employer, upon request, refuse to provide the requested records to the Commissioner, the Commissioner may compel the employer to provide the records through the issuance of an administrative subpoena and/or interrogatories. See Department of Labor and Industry (DOLI) Policy on "Administrative Subpoenas and Interrogatories Issued in Accordance With Va. Code §40.1-6(4)". http://www.doli. virginia. gov/laborlaw/pdfs/Policy%20o0n%20the%20use%200f%20Admi nistrative%20Subpoenas%20.pdf
3i An employer's willful failure or refusal to answer any legal and proper question propounded by the Commissioner in response to either an administrative subpoena or list of interrogatories may be referred to the appropriate Commonwealth's Attorney for a misdemeanor prosecution in accordance with Va. Code §40.1-10. Such person, if convicted, shall be fined in an amount not exceeding $100 nor less than $25.00, or imprisoned in jail not exceeding 90 days, or both.
- If it is determined that the employer failed to provide the requested records to the Commissioner because the employer failed to maintain the required records, the Commissioner may refer the case to the VEC and/or the U. S. Department of Labor (USDOL) for further investigation under any applicable statutes and regulations.
5
--- Page 3 ---a In the case of FLSA required records, if such records are not provided, there shall be a presumption in favor of the party making an allegation, and the burden of overcoming the presumption shall rest upon the party failing to provide the required records. Anderson v.
Mt. Clemons Pottery Co., 328 U.S. 680 (1946) (see Legal Background section below).
- In the case of VEC required records, if such records are not provided, there shall be a presumption in favor of the party making an allegation, and the burden of overcoming the presumption shall rest upon the party failing to provide the required records. VEC regulation §16VAC5-32-10.C. (see ATTACHMENT A). See also, §10-17, Non-Production of Witnesses or of Evidence; "Missing Witness" Instruction; The Law of Evidence in Virginia, Friend, (2003).
NOTE: To the extent that this Policy conflicts with current policies or procedures in the Labor and Employment Law Field Operations Manual, this Policy shall take precedence.
LEGAL BACKGROUND
Authority to Request Records
The Commissioner of Labor and Industry is authorized to require employers to develop, maintain
and make available records that can be used in DOLI enforcement actions. Va. Code § 40.1-6(7)
provides as follows
The Commissioner shall
(7) Have power to require that accident, injury and occupational illness records and reports be kept at any place of employment and that such records and reports be made available to the Commissioner or his duly authorized representatives upon request.
Further, he may require employers to develop, maintain and make available such other records and information as are deemed necessary for the proper enforcement of this title. (emphasis added).
Recordkeeping Requirements of Other Agencies
Employers are required to keep records on the pay of their employees by VEC regulation
§16VACS5-32-10. Employing unit records
A. Each employing unit as defined under § 60.2-211 of the Code of Virginia, having services performed for it by one or more individuals in its employ, shall maintain records reasonably protected against damage or loss as hereinafter indicated and shall preserve such records. These records shall include for each worker:
[SEE ATTACHMENT A FOR LIST OF REQUIRED RECORDS]
Employers are required to keep records on the pay of their employees under the FLSA -
Recordkeeping Requirements, 29 CFR 516, provides as follows
3
--- Page 4 ---§516.2 Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act. (a) Items required. Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply: [SEE ATTACHMENT B FOR LIST OF REQUIRED RECORDS] Burden of Proof in FLSA Cases and by Extension, Virginia Wage Cases Va. Code § 40.1-2. Definitions, defines the term "employer": "Employer". means an_ individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy doing business in or operating within this Commonwealth who employs another to work for wages, salaries, or on commission and shall include any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. (Emphasis added).
The above highlighted language tracks wording from the definition of "employer" contained in §203 of the Fair Labor Standards Act (FLSA): (d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
Therefore, it is appropriate to look to judicial rulings established under federal law as a guide for interpreting the Virginia statute. Anderson v. Mt. Clemons Pottery Co., 328 U.S. 680 (1946) discusses the burden of proof in instances where records required to be kept by the FLSA are either incomplete or non-existent:
"An employee who brings suit under § 16(b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies, however, militate against making that burden an impossible hurdle for the employee. Due regard must be given to the fact that it is the employer who has the duty under § 11(c) of the Act to keep proper records of wages, hours, and other conditions and practices of employment, and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed. Employees seldom keep such records themselves; even if they do, the records may be, and frequently are, untrustworthy. It is in this setting that a proper and fair standard must be erected for the employee to meet in carrying out his burden of proof.
When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer
4
--- Page 5 ---convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation, we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. See Note, 43 Col.L.Rev. 355.
The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or nonactivities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.
Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain. But here, we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case "it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts." Story Parchment Co. v. Paterson Parchment Co., 282 U. S. 555, 282 U. S. 563. It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 273 U. S. 377-379; Palmer v. Connecticut Railway & Lighting Co., 311 U. S. 544, 311 U. S. 560-561; Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 327 U.S. 263-266."
5
--- Page 6 --- ATTACHMENT A Virginia Employment Commissioner Laws and Regulations
Regulations
16VAC5-32-10. Employing unit records.
A. Each employing unit as defined under § 60.2-211 of the Code of Virginia, having services performed for it by one or more individuals in its employ, shall maintain records reasonably protected against damage or loss as hereinafter indicated and shall preserve such records. These records shall include for each worker:
- A full legal name;
- A social security account number;
- The state or states in which his services are performed; and if any of such services are performed outside the Commonwealth of Virginia not incidental to the services within the Commonwealth of Virginia, his base of operations with respect to such services (or if there is no base of operations then the place from which such services are directed or controlled) and his residence (by state). Where the services are performed outside the United States, the country in which performed;
- The date of hire, rehire, or return to work after temporary layoff;
- The date when work ceased and the reason for such cessation;
- Scheduled hours (except for workers without a fixed schedule of hours, such as those working outside their employer's establishment in such a manner that the employer has no record or definite knowledge of their working hours);
- a. Wages earned in any week by a partially employed individual as such individual is
defined in 16VACS5-10-10;
b. Whether any week was in fact a week of less than full-time work;
c. Time lost, if any, by each such worker, and the reason therefor; 8. Total wages in each pay period, and the total wages payable for all pay periods ending in each quarter, showing separately (i) money wages, including tips and dismissal or severance pay, and (ii) the cash value of other remuneration; 9. Any special payments for service other than those rendered exclusively in a given quarter, such as annual bonuses, gifts, prizes, etc., showing separately (i) money payments, (11) other remuneration, and (iii) nature of said payments;
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--- Page 7 ---10. Amounts paid each worker as advancement, allowance or reimbursement for traveling or other business expenses, dates of payment, and the amounts of expenditures actually incurred and accounted for by such worker;
- Location in which the worker's services are performed within or outside of the United States and dates such services are performed outside of the United States. For the purposes of this subdivision, "United States" means the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
B. Employers shall provide the commission upon request all payroll records, federal W2 and 1099 forms, federal and state employment and income tax returns, and any other records that would be relevant to ensuring that wages had been accurately reported and taxes or refunds correctly computed and paid. Records required by this chapter to be maintained by employing units under the Act shall be preserved for four years from the date of payment of the tax based thereon and shall be subject to examination and audit by the commission.
Le If such records are not maintained, there shall be a presumption in favor of the party making an allegation, and the burden of overcoming such presumption shall rest upon the party failing to maintain the required records.
Statutes
Va. Code § 60.2-211. Employing unit.
A. "Employing unit" means any of the following which has or had in its employ one or more individuals performing services for it within this Commonwealth:
-
Any individual or type of organization, including the state government and its instrumentalities;
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Any of the political subdivisions of this Commonwealth and their instrumentalities;
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Any instrumentalities wholly owned (i) by this Commonwealth and one or more political subdivisions, (ii) by a combination of political subdivisions or (iii) by any of the foregoing and one or more other states or their political subdivisions;
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Any partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof; or
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The legal representative of a deceased person.
B. All individuals performing services within this Commonwealth for any employing unit which maintains two or more separate establishments within this Commonwealth shall be deemed to be employed by a single employing unit for all the purposes of this title.
Whenever any employing unit contracts with any person for any service which is a part of such employing unit's usual trade, occupation, profession or business, that employing
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--- Page 8 ---unit shall be deemed to employ all individuals employed by such person for such service unless such person performs service or is in fact actually available to perform service for anyone who may wish to contract with him and is also found to be engaged in an independently established trade, occupation, profession or business. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this title, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of such work.
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--- Page 9 --- ATTACHMENT B Federal Laws and Regulations Regulations USDOL Fair Labor Standards Act - Recordkeeping Requirements 29 CFR 516. §516.2 Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act. (a) Items required. Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply: (1) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records, (2) Home address, including zip code, (3) Date of birth, if under 19, (4) Sex and occupation in which employed (sex may be indicated by use of the prefixes Mr., Mrs., Miss., or Ms.) (Employee's sex identification is related to the equal pay provisions of the Act which are administered by the Equal Employment Opportunity Commission. Other equal pay recordkeeping requirements are contained in 29 CFR part 1620), (5) Time of day and day of week on which the employee's workweek begins (or for employees employed under section 7(k) of the Act, the starting time and length of each employee's work period). If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice, (6)(i) Regular hourly rate of pay for any workweek in which overtime compensation is due under section 7(a) of the Act, (ii) explain basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and (iii) the amount and nature of each payment which, pursuant to section 7(e) of the Act, is excluded from the “regular rate” (these records may be in the form of vouchers or other payment data), (7) Hours worked each workday and total hours worked each workweek (for purposes of this section, a “workday” is any fixed period of 24 consecutive hours and a “workweek” is any fixed and regularly recurring period of 7 consecutive workdays), 9
--- Page 10 ---(8) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation, (9) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under paragraph (a)(8) of this section, (10) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions, (11) Total wages paid each pay period, (12) Date of payment and the pay period covered by payment.
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Virginia Labor and Employment Law ManualDoc ID: FIELD
VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW
FIELD OPERATIONS MANUAL
DISCLAIMER
The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.
The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.
This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law’s Field Operations Manual. This document supersedes any and all previous editions.
Last Revised March 2010
Hexavalent Chromium National Emphasis ProgramDoc ID: 14-441
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VOSH PROGRAM DIRECTIVE: 14-441 ISSUED: May 15, 2010
SUBJECT: National Emphasis Program – Hexavalent Chromium
A. Purpose.
This directive transmits to field personnel policies and procedures for implementing a National Emphasis Program to identify and reduce or eliminate the health hazards associated with occupational exposure to hexavalent chromium and other toxic substances often found in conjunction and other toxic substances often found in conjunction with hexavalent chromium.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not
being enforced as having the force of law.
B. Scope.
This directive applies to all VOSH personnel.
C. Reference.
OSHA Instruction CPL 02-02-076 (February 23, 2010).
D. Cancellation.
Not Applicable.
E. Effective Date.
May15, 2010.
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F. Action.
Directors and Managers shall ensure that the policies and procedures established in this Directive are followed.
Courtney Malveaux Commissioner
Attachment: OSHA Instruction CPL 02-02-076 (February 23, 2010) or refer to
https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-02-076.pdf
Distribution: Commissioner of Labor and Industry Assistant Commissioner – Programs VOSH Directors and Managers Cooperative Programs Director and Manager Legal Support Staff and IMIS Staffs OSHA Regional III and Norfolk Area Offices
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When the guidelines, as set forth in this Program Directive, are applied to the Commissioner of the Department of Labor and Industry and/or to Virginia employers, the following federal terms if and where they are used, shall be considered to read as below:
Federal Terms VOSH Equivalent
29 CFR VOSH Standard
Regional Administrator Commissioner of Labor and Industry
Area Director Regional Director
Regional Solicitor VOSH Division of Legal Support (DLS)
Agency Department
Office of Statistics VOSH Research and Analysis
Compliance Safety and Health Officer (CSHO) CSHO
OSHA Directives: VOSH Program Directives
OSHA Instruction CPL 02-00-148, Field Operations VOSH Program Directive 02-001D, Field Manual (FOM) (11/09/09): Operations Manual (FOM) 04/01/03) Chapter 2 – Cooperative Programs Chapter 1.E.2.d. – Cooperative Programs Chapter 3 – §III.B & Ch. 11, §I.C.1, Chapter II-A, §A.3., Expanding Scope of Expanding Scope of Inspection Inspection
OSHA Instruction CPL 02-02-074, Inspection VOSH Program Directive 02-440, Inspection Procedures for the Chromium (VI) Standards Procedures for the Chromium (VI) Standards (05/01/08)
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Electrical Work in Critical Data CentersDoc ID: 2017
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COMMONWEALTH of VIRGINIA
DEPARTMENT OF LABOR AND INDUSTRY
Main Street Centre 600 East Main Street, Suite 207 Richmond, Virginia 23219
PHONE (804) 371-2327
FAX (804) 371-6524 February 22, 2017 Mr. Anthony Martinez Shook Hardy & Bacon 2555 Grand Blvd.
Kansas City, Missouri
Dear Mr. Martinez
Thank you for your February 2, 2017, letter to the Virginia Department of Labor and Industry’s VOSH Program. You were seeking interpretation of OSHA's Selection and use of work practices standard, 29 CFR 1910.333, as it relates to the infeasibility of de-energizing equipment under certain circumstances. Your paraphrased scenario, question, and our response follow.
Scenario: Your client provides data center services to customers who may provide 911 services, airline traffic control, and critical healthcare systems. To perform electrical work on data center equipment in a de-energized state would cause a significant interruption to your client’s services to their customers.
Question: Can our client provide a notice to their customers requiring them to identify themselves as having critical operations where de-energizing introduces additional or increased
hazards, thus allowing your client to perform work while the equipment is energized.
Response: The proposed notice to be sent to your client’s customers requires them to identify themselves as having critical operations such that de-energizing introduces additional or increased hazards. Further it requires these customers to complete and execute an “Energized Electrical Work Certification” which certifies that the customer has determined that they meet the requirements for an exemption for energized work. This agreement maintains that the customer will indemnify and hold harmless your client against any damages or losses from your client performing energized work related to the customer’s services. Contractual arrangements concerning limitations on liability between third parties are not subject to the Virginia occupational safety and health laws and regulations enforced by this Department, so we will not comment on that portion of your interpretation request. Also please note that such a "hold harmless" clause in no way exempts your client from VOSH regulatory requirements concerning work performed on energized equipment. To qualify for the exception found in Note 1 of
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- 333(a)(1), the employer must, on a case-by-case basis, determine if the orderly shutdown of the related equipment and processes would introduce additional or increased hazards. If so, then the employer may perform the work using the electrical safe work practices found in 1910.331-1910.335, including, but not limited to, insulated tools, shields, barrier, and personal protective equipment. If the orderly shutdown of the related equipment and processes would not introduce additional or increased hazards, but merely alter or interrupt production, then the de-energization of the equipment would be considered feasible, and the exception found in Note 1 of 1910.333(a)(1) would not apply. These requirements apply to the employer whose employees perform the energized work. Therefore, it would be your client’s responsibility to determine if de-energized work is infeasible. If it has been determined that de-energizing a circuit is not feasible and the work must be done energized the employer, your client, shall enforce the following practices as applicable, including but not limited to: Work to be performed by a qualified person Use of an Energized Electrical Work Permit
Completion of an Arc Flash Hazard Analysis Labeling of electrical equipment for arc flash hazards Use of PPE per arc flash labeling/information Training of all employees Providing safe electrical work practices can be accomplished by following the 1910.331-1910.335 standards as well as NFPA 70E consensus standard.
Based on the limited information you provided regarding the electrical safe work practices used by your client, it cannot be determined whether or not your client’s energized work processes protect employees who may be exposed to electrical hazards, including, but not limited to electric shock and arc flash. Further, your request seeks an interpretation for “all data centers”, which you state are located throughout the United States. This letter of interpretation only applies to work covered under the jurisdiction of the Virginia Department of Labor and Industry and may not apply in other states.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. VOSH requirements are set by statute, standards, and regulations. Our interpretation
letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes VOSH’s interpretation of the requirements discussed. If you have any further questions, please feel free to contact me at 804-786-7776.
Sincerely,
Jennifer L. Rose, CSP VOSH Safety Program Director
Fall Hazards Local Emphasis ProgramDoc ID: 14-201
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VOSH PROGRAM DIRECTIVE: 14-201 ISSUED: November 1, 2001 REISSUED: April 1, 2003
SUBJECT: Local Emphasis Program: “Fall Hazards”
A. Purpose.
This directive updates old references and renumbers this LEP to conform to the revised VOSH program directives’ classification and numbering system (see VOSH Directive
01-001A).
This directive continues the local emphasis program (LEP), “Fall Hazards,” for Construction and General Industry.
This Program Directive is an internal guideline, not a statutory or regulatory rule, and is intended to provide instructions to VOSH personnel regarding internal operation of the Virginia Occupational Safety and Health Program and is solely for the benefit of the program. This document is not subject to the Virginia Register Act or the Administrative Process Act; it does not have general application and is not being enforced as having the
force of law.
B. Scope.
This Directive applies to all VOSH personnel, and specifically to Occupational Safety and Consultation Services Personnel.
C. Reference.
Not applicable.
D. Cancellation.
VOSH Program Directive 02-201 (November 1, 2001).
E. Action.
Directors and Managers shall ensure that procedures established in this directive are adhered to in scheduling and conducting inspections which comply with this local emphasis program.
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F. Effective Date.
April 1, 2003.
G. Expiration Date.
Not Applicable.
H. Background and Summary.
VOSH investigated 14 fatal falls from heights in construction and general industry in
2000, 16 fatal falls in 2001, and 14 fatal falls in 2002. Because of the continuing pattern attributable to falls from heights, VOSH Compliance has determined that continuation of this emphasis program effort is warranted. This local emphasis program increases VOSH Compliance presence and heightens awareness in the construction industry and in general industry of hazardous conditions or situations existing on their worksites where employees are exposed to falls from heights above 6 feet. VOSH believes that the rate of fall deaths and serious injuries can be significantly affected by a concentration of compliance resources to address fall hazards in construction and general industry.
Fall hazards under consideration include, but are not limited to, the following:
Employees working on roofs or near unprotected sides or edges of floor holes
Construction trades where employees are working above 6 feet from a lower level without fall protection as called for in 1926 Subpart M;
Maintenance employees in general industry settings.
Employees working at heights on other structures or equipment
Workers on towers, signs, billboards, vehicles, etc. without standard fall protection provided.
NOTE: This Directive does not pre-empt the existing LEP on Scaffolding (PD 14-204)
I. Procedures.
- All compliance personnel shall be instructed to be on the lookout for construction and general industry activities in which employees are exposed to fall hazards.
Every observation of these general industry and construction activities shall be handled as follows:
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a. Regardless of whether a violation is observed, whenever a CSHO sights or receives any other notice of a construction or general industry operation in which fall hazards may be possible (including complaints, other government agency referrals, and reports from members of the public), the CSHO shall:
(1) Make note of the state and condition of the work operation insofar as it is known, including any apparent serious hazards.
(2) Note the name and address or location of the worksite and the contractor (where applicable) performing the operation, if known.
(3) Note whether violations or unsafe conditions are observed in plain view. Refer to I.1.c., below, if no violations or unsafe conditions are observed.
(4) If employee(s) are exposed to a serious fall hazard, make immediate contact with the foreman, superintendent or lead man on site and ensure that exposed employees are instructed to immediately remove themselves from the hazardous condition.
b. All activities involving fall hazards in construction and general industry that are brought to the attention of the CSHO shall be inspected if violations or unsafe conditions are observed in plain view. The CSHO shall notify his supervisor at the earliest convenient time that an inspection
has be opened pursuant to this LEP.
c. No inspection of the worksite shall be conducted if it is apparent that employees exposed to fall hazards are properly protected. When no inspection is conducted, the CSHO shall record this for the purposes of the IMIS system according to the guidelines in J.3.
d. Complaints and other referrals in construction and general industry operations involving fall hazards shall be scheduled as unprogrammed inspections under this LEP, conducted in accordance with the VOSH FOM. Such notices, therefore, need not be responded to with the usual letter to the employer.
- Although sightings will normally be those which occur during the course of routine travel during duty or non-duty hours, the discovery of these work activities may be the result of a specific search to find activities involving fall hazards as approved by the Regional Director.
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Documentation of the events leading up to the observation or the reporting of construction and general industry activities involving fall hazards shall be maintained by the Regional Office in case of denial of entry.
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When an inspection is not conducted because consent has not been obtained, a warrant normally shall be sought in accordance with the current procedures for handling such cases. A warrant may not be necessary if the violations are in plain view.
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The scope of inspections conducted under this LEP shall normally be limited to activities relating to employees exposed to fall hazards. If the inspection is to be
expanded, the principles given in the VOSH FOM shall be followed.
J. Recording in IMIS
The following guidelines shall be applied when recording inspections conducted under this LEP and during other inspections in general or construction industries activities involving fall hazards.
1. For IMIS purposes, the VOSH-1 form will be completed as follows
For Inspection Type, find item 24, and enter an “H” after the colon. (This will yield “Programmed Planned” on the screen.)
For Inspection Classification, find item 25c and enter a “Y” after the colon. (This will yield “Local Emphasis Program” on the pop-up box. Enter “FALL” in all caps in the left-hand column of the pop-up box.
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Nonformal complaints, other government agency referrals and reports from the public reporting potential hazards related to general industry or construction operations involving fall hazards shall be recorded on a VOSH-7 form (Notice of Alleged Safety or Health Hazards) or on a VAOSH-90 (Referral report), if appropriate. Follow current IMIS instructions. They shall also be recorded as unprogrammed inspections under the LEP.
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No Inspection Conducted: When no inspection of fall hazards is conducted for any of the reasons listed in I.1. through I.5, the VOSH-1 form shall be marked
“No inspection” (Item 35, marked “D” after the colon); “Close” (Item 44, marked “A”); “No Citations Issued: (Item 44, marked “B”); and “Other” (Item 45, marked “I.”). Record “FALL” in the space in 45I. “Opening Conference Date” (Item 20) will be the date of entry (enter the month/day/year) and “Closing Conference Date” (On Site) (Item 46) will be the date of exit (enter the month/day/year).
Opening and closing dates are the same date when no inspection is conducted.
Note: If you have any questions regarding the proper way to record in IMIS, please
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contact the VOSH IMIS section.
C. Ray Davenport Commissioner
Attachment: None
Distribution: Commissioner of Labor and Industry Directors and Compliance Managers VOSH Compliance Staff Legal Support Staff Training and Consultation Staff OSHA Regional Administrator, Region III OSHA Regional Office, Norfolk
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Executive Summary
The enhanced compliance analysis of Department of Labor and Industry guidance documents has achieved an overall reduction of 30.9% across 58 documents.