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Don’t Be Caught Unprepared!
Managing New and Expensive OSHA Changes
July 28, 2015
Presented By:
Howard A. Mavity
hmavity@laborlawyers.com
(404)231 1400
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• Have you seen signs of conciliation and
cooperation between governmental branches?
• Is the wild early Presidential campaign drawing
Democratic candidates to the right, a la Bill
Clinton?
• Have you seen the usual abandon ship by
Presidential Appointees, which typically begins
around now?
• Any reduction in use of Executive Orders,
Interpretations and Directives?
THE ADMINISTRATION IS GOING OUT WITH A
ROAR AND NOT A WHIMPER
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HAVE YOU OBSERVED A SLOWING OF REGULATORY EFFORTS?
• Government Contractors “Black List” Executive Order (Fair
Pay and Safe Workplaces E.O.)
• Proposed Wage-Hour Overtime Salary Test Changes
• Fierce Focus on establishing Joint Employer status between
franchisors/franchisees and Employers and Contractors
• NLRB Attacks on Employer Handbooks, Rules, Social
Media Management and Disciplinary Processes
• OSHA “Ergonomics” Emphasis on healthcare, distribution
and logistics
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PROPOSED CHANGES TO THE OVERTIME SALARY
EXEMPTION TEST
• An increase in the salary basis of $455 per week (or $23,660 annually) for “white
collar” exempt employees to $50,440 or $970 per week in 2016, with Annual
(and automatic) updates in salary level.
• An increase in the salary basis of $100,000 to $122,148 annually for “highly
compensated” employees in 2016, with Annual (and automatic) updates in salary
level.
– Effect on operations – cell phone usage and after hour work.
– Timekeeping and recordkeeping in a virtual and mobile workplace.
– Morale.
– Focuses Plaintiff Counsel on all aspects of wage-hour compliance.
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NLRB ASSAULT ON POLICIES
AND PROCEDURES
• Even if no union is involved, if you fire an employee for violation of
an invalid rule, you’ll be stuck with reinstatement, back pay and
posting an “NLRB Notice.”
• Unlawful rules and procedures could be used by a union to
overturn a “No” election vote.
• You might have to post an NLRB Notice acknowledging our bad
behavior and reminding employees of their right to organize.
• Changes harm your ability to investigate wrongdoing, enforce No
Harassment and Professionalism requirements or protect the
Company’s interest
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• Beer distribution is not an especially hazardous industry.
• Often there is more focus on vehicular safety and security
than on OSHA compliance
• Safety efforts are not the same as OSHA “compliance,” and
vice versa
• OSHA did not focus much in the past on the industry
• Lack of OSHA activity is not the same as good compliance,
and this distinction can catch you off guard
OSHA’S AND YOUR INDUSTRY
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• OSHA’s new “Reporting” requirements make it more likely you’ll
be inspected.
• OSHA’s emphasis on ergonomics in distribution, and especially
beverage and bottling;
• Site-Specific Targeting ($162,500 beer distributor citation)
• OSHA’s Temporary Employee Initiative heavily affects distribution;
OSHA’S FOCUS ON YOUR INDUSTRY
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• OSHA cites employers for violations of its “general industry” standards
found at 29 CFR 1910 (www.OSHA.gov).
• Intent is not required.
• Most violations are classified “serious.”
• If any of a company’s locations are fined for again violating the same
standard within 5 years, it’s a Repeat violation costing up to $70,000 per
item.
• OSHA must prove a hazard, employee exposure, an applicable standard,
and that the employer “knew or should have known of the violation with the
exercise of due diligence.”
• Knowledge of ANY supervisory employee is imputed to the employer.
• Quality of your safety processes determines “due diligence.”
HOW OSHA OPERATES
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OSHA is focusing on “Repeat” Citations for companies with multiple locations, and
even “safe” industries such as retailers get hit with Repeats.
• OSHA fines NJ Dollar Tree Stores $50,000.
• Missoula Dollar Tree $217,000 for “willfully putting workers at risk.”• Massachusetts Store $177,800.• Texas Dollar Tree Store $262,500.• Delaware Store $103,000 for second time violations.• $121,000 to NJ Store for repeat violations.• Texas Store $116,200 penalties.• Store $143,000 for willful violations.• $121,000 to Illinois store.
Dollar Tree is being portrayed as a bad employer, but what factors might actually cause these problems?
Could it happen to you?
THE EFFECT OF REPEAT CITATIONS
ON COMMON VIOLATIONS
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•The company exposed permanent and temporary workers .
•Initiated as part of the Site-Specific Targeting Program* that inspects workplaces with the
highest injury and illness rates, the investigation found two willful and eight serious violations.
–“Employees faced risk of serious injuries due to not providing appropriate training, properly
working equipment, and safe exit routes, which is unacceptable,"
•"OSHA investigators determined that powered industrial truck operators were not trained and
defective trucks were not removed from service. The willful violations have a $121,000 penalty.
•A willful violation is one committed with intentional, knowing or voluntary disregard for the law's
requirement, or with plain indifference to the law.
•The warehouse also had obstructed exit routes, damaged storage racks and additional
powered industrial truck hazards.
•The company failed to provide both chemical hazard communication and powered industrial
truck training. These violations carry a $41,500 penalty.
OSHA NATIONAL PRESS RELEASE
$162,500 BEER DISTRIBUTION CITATION
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• Missing even one forklift operator for retraining every three years or after
an employee had an accident and demonstrated a need for retraining
• Blocked exits, electric cabinets or extinguishers
• Missing labels on electric cabinet switches, holes or missing switches in a
cabinet, damaged extension cords or missing ground plugs, or using
temporary wiring where permanent wiring is required
• Failure to document Hazard Communication training or failure to retrain
employees when introducing a new category of chemical hazard or
failure to have eye protection for battery charging activities or truck
cleaning, etc.
• Damaged racks, pallet jacks and docks
• Temporary employees or contractors on site did not receive the same
training as full time employees
ROUTINE LOW HANGING FRUIT
OSHA VIOLATIONS
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• Who is responsible for Facilities and Maintenance?
• Who is responsible for Safety?
• Who is responsible for Security?
• Who is responsible for Vehicle Safety and Compliance?
• Who is responsible for Workers Comp?
• What is HR’s role?
• What Safety Manual, “Statements”, and Injury Illness and Prevention
Programs exist?
– When last reviewed and updated?
• How are managers trained on safety?
• How do you train new employees?
– Role of OJT
• How do you provide ongoing safety training?
DETERMINE YOUR OSHA
EXPOSURE AREAS
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• Warehouse
– Conveyors
– Docks, yard, wash areas
– PIT – forklifts and equipment
– Racks
– PPE/JSA
– Ergonomics
• Drivers, Merchandises, Representatives
– Ergonomics
– Workplace violence
• Multi-Employer Issues
– Temps and logistics providers
– Contractors onsite (e.g.; snow removal, roofs)
– Sharing equipment
DETERMINE YOUR OSHA
EXPOSURE AREAS
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• What is your role in safety compliance for temps and other non
employees onsite?
• What maintenance do your employees perform?
– Conveyors
– Dock plates
– Electrical
– PITS
– Vehicles
• Do you conduct regular “safety” inspections and audits?
– By whom?
• Do you conduct attitude surveys?
DETERMINE YOUR OSHA
EXPOSURE AREAS
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• When did you last review and update basic safety
policies and procedures?
• Powered Industrial Trucks (PIT)
– Every three years retraining
– How documented?
– Retraining after accident or violation?
– Daily inspections – how documented?
– Attachments, modification and plates
• Lock Out (LOTO)
– Where and when
– Annual “evaluation”
– Machine-specific procedures
DETERMINE YOUR OSHA
EXPOSURE AREAS
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• Executive role in safety
– Is safety really “number one?”
• How are supervisors trained and held to
consistency?
• Safety Incentive Programs
– Lagging vs. Leading Indicators
– OSHA’s position
– Safety, meetings, committees and self audits
SAFETY CULTURE
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• Job Safety Analysis (JSA)
– Do you have JSAs?
– Format, signature and date, Site-Specific
– PPE
– Safety Shoes (Cal-OSHA)
• Fire Prevention
– Fire extinguishers
– “Fight or Flight” procedure
– Signage Issues
– Blocked exits, extinguishers, and electric panels and
rooms
DETERMINE YOUR OSHA
EXPOSURE AREAS
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Imagine the possibilities if an employer doesn’t even know the
number of temps on site and has not focused on this issue or made
specific plans.
– Temps don't receive the same training as full time employees
performing the same duties;
– Aren’t included in Hearing Conservation or Respiratory Protection
Programs;
– Not included in safety meetings;
– No documentation of on-the-job training;
– Not aware of emergency response plans;
– Supervisor roles may be unclear;
COMMON TEMPORARY EMPLOYEE
PROBLEMS
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START WITH OSHA’S MULTIEMPLOYER
CITATION POLICY CPL 02-00-124
• Exposing employer
• Controlling employer
• Creating employer
• Correcting employer,
OR CITE THEM ALL ….
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Complaints
– relationships to problem employees
– whistleblowers/retaliation
OSHA’s new Injury Reporting Rules
Targeted Inspections
Ergonomic Emphasis Programs
Beverage Distribution Emphasis Programs
WHY OSHA COMES ON SITE
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EXPANDED OSHA REPORTING
REQUIREMENTS
Employers must now report the following to Fed-OSHA:
• All work-related fatalities and three or more hospitalizations within 8
hours (same as current requirement)
• All work-related in-patient hospitalizations of one or more
employees within 24 hours
• All work-related amputations within 24 hours
• All work-related losses of an eye within 24 hours
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REPORTING RULES
IN PATIENT HOSPITALIZATIONS:
In-patient hospitalization is defined as a formal admission to the in-patient service of a hospital or clinic for care or treatment.
1904.39(b)(10) Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing?
–No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each inpatient hospitalization that involves care or treatment.
But, Get it in writing.
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1904.39(B)(11) HOW DOES OSHA DEFINE
“AMPUTATION"?
An amputation is the traumatic loss of a limb or other
external body part. Amputations include a part, such as a
limb or appendage that has been severed, cut off,
amputated (either completely or partially); fingertip
amputations with or without bone loss; medical amputations
resulting from irreparable damage; amputations of body
parts that have since been reattached.
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MOST COMMON OSHA
REPORTING ISSUES
• Is the single hospitalization for “observation?”
• What is an amputation?
• How do I handle heart attacks?
• What if the hospitalization occurs more than 24 hours after the
accident?
• When will OSHA come on site based on my report?
• Do I have to complete OSHA’s “Root Cause” Analysis Form?
• What if I’m late to report?
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• OSHA Inspections
– At each location, who is designated?
– Familiar with records sought?
– Audits and self inspections
– Limited “scope”
– Walk-around process
• Why take notes?
– Interview rights
– Fatalities and catastrophes
• Whistleblowers and Retaliation
HANDLING OSHA INSPECTIONS
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TAKE AWAYS
1. Make a list of the violations set out in the Anheuser-Busch citations and
similar items, and regularly audit for these areas … or even better, use
employees for regular self-audits and walk arounds. Not only will you
improve safety, but you’ll engage employees through such efforts and avoid
a plethora of employee issues. Engaged employees don’t sue you or seek
union representation.
2. Thoughtfully examine your merchandisers and drivers for potential
ergonomic concerns. Review 300 logs and first aid records in order to
determine potential areas to improve for merchandisers.
3. Do the same for warehouse employees. Because OSHA does not maintain
an Ergonomic standard, you, in essence create the “standard.” In other
words, OSHA will look to your hazard determinations and preventive efforts
as the industry standard for responding to these types of injury concerns.
4. Recognize that an increasingly savvy workforce knows how to harm
employers by complaining to OSHA or filing retaliation claims with OSHA or
the NLRB.
5. Determine if your Workplace Injury Rates place you in the OSHA Site-
Specific Selection Program, like the employer above. Many distributors
do not know that they fall on this programmed OSHA inspection list.
6. Ensure your sites know what to do if OSHA shows up?
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Section 5(a)(1) of the OSHAct allows OSHA to cite an
employer for a hazard that is “recognized by their industry,”even if, as in the case of Ergonomics, no OSHA Standard has
been enacted. OSHA must prove:
• whether there exists an ergonomic hazard,
• whether that hazard is recognized,
• whether the hazard is causing, or is likely to cause,
serious physical harm to employees,
• and whether a feasible means exists to reduce the
hazard.
HOW OSHA CITES WITHOUT AN ERGONOMIC
STANDARD
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It’s not enough to point to an ANSI, NFPA or UL consensus
standard, OSHA must prove that the industry accepts those
standards. Ergonomics is broad and sometimes mushy
area, so OSHA has approached one industry at a time,
beginning with: Meat Packing, Poultry, Nursing Homes,
Grocery Stores, Foundries, Retail Groceries, Shipyards, and
Beverage distribution.
HOW OSHA CITES WITHOUT AN ERGONOMIC
STANDARD
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2011 “Hazard Alert” Letters
2013 First Round of Inspections and Complaint Letters
2014 Second Round of Letters
2015 Inspections demanding Engineering Changes and
Adherence to NIOSH Lifting Equation
OSHA’S MULTIYEAR PROCESS OF
“CREATING” AN INDUSTRY STANDARD
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The purpose of this letter is to alert you to an important issue and provide
you with information that may be used to protect the safety and health of
your workers. OSHA inspection activity at some beverage distribution
operations initiated an analysis of the injury and illness rates for workers
involved in the beverage distribution industry.
These inspections along with the U.S. Bureau of Labor Statistics1 data
indicate these workers have a significantly higher rate of musculoskeletal
injuries than workers in most other industries. Typical beverage delivery
activities often involve forceful exertions, repetitive motions and awkward
postures for prolonged durations which can cause serious injuries of the
back, shoulders, arms, wrists, hands and legs.
OSHA’S 2011 ERGONOMIC HAZARD
ALERT TO BEVERAGE DISTRIBUTORS
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A comprehensive ergonomic program to eliminate or reduce
musculoskeletal injuries should include the following elements:
1. Beverage delivery task analysis and customer site evaluations to
determine whether ergonomic hazards are present.
2. Worker and management site specific ergonomics training to ensure
workers and managers are aware of ergonomic hazards and control
methods.
3. Hazard control - reduce ergonomic hazards causing musculoskeletal
injuries using:
a. Engineering Controls:
i. Delivery vehicle pull-out step-on platforms, exterior grab
handles on all bays and drop down bay shelves.
OSHA’S 2011 ERGONOMIC HAZARD
ALERT TO BEVERAGE DISTRIBUTORS
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ii. Appropriate delivery equipment such as hand trucks, stair
climbers, conveyors and hoists and light weight plastic
pallets.
iii. Product modifications such as optimizing beverage
packaging and contents to reduce package weight and
improve grip.
b. Administrative controls:
i. Repair and maintenance programs for vehicles and
equipment utilized by delivery drivers.
c) Work organization controls:
i. Pre-planned unloading for the driver route, including route
specific loading diagrams to reduce multiple manual
product handling.
OSHA’S 2011 ERGONOMIC HAZARD
ALERT TO BEVERAGE DISTRIBUTORS
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4. Ergonomic program evaluation to determine if the
ongoing process is effective:
a. Evaluation and trending of the injury logs to
ensure reduction in the incidence and severity
rates of musculoskeletal disorders.
b. Worker feedback on the effectiveness of controls.
OSHA’S 2011 ERGONOMIC HAZARD
ALERT TO BEVERAGE DISTRIBUTORS
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OSHA recommends:
• Secure the services of a professional ergonomist with experience in the
warehousing industry to perform a full evaluation of your operation and make
specific recommendations based on your operations for improvements on
equipment, work practices, policy development and employee and supervisor
training to reduce the hazard to employees.
• Develop a written ergonomic policy or plan that addresses ergonomic concerns
identified and approach to mitigate those concerns. The written plan should
describe worksite analysis, medical management, training and education, and
hazard prevention control. The NIOSI-1 publication Elements of Ergonomic
programs can assist you in this.
2013 INITIAL OSHA ERGONOMICS
INSPECTION AND DIRECTIONS TO SAME EMPLOYERS
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• Develop and implement an effective monitoring and enforcement program
for supervisors to ensure employees appropriately use the lifting devices
available in their area to use for these purposes such as the fork lifts and
pallet jacks.
• Implement a training program that address the ergonomic hazards
associated with the job. Train employees on early recognition of
ergonomic injuries and illnesses and the importance of reporting them
promptly to minimize occurrence and severity of MSDs, the risks-
associated with material handling, and how to prevent the lifting injuries
from occurring.
• Educate the employees about the hazards of bending while moving heavy
loads, and ensure the use of proper lifting techniques.
• Consider the use of rotating load-leveling pallet loaders which are
calibrated to position the load at approximately waist height to eliminate
bending. Consider using empty pallets to create an elevated p platform to
serve as the base of the pallet to be loaded/unloaded to reduce deep
bending. Consider a height adjustable palletizer on the forks of the pallet
jack to keep product at waist height and when possible, utilize power
equipment rather than manual to reduce ergonomic stresses.
2013 INSPECTION AND
DIRECTIONS TO SAME EMPLOYERS
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Frequency of lift is a risk factor coupled with the position and
weight of load. Work rates that reportedly require employees
to unload, pick, and load orders rapidly while skipping
breaks to achieve their former rate of pay increases the risk
of MSDs and accidents. A. competent work-time consultant
can survey work tasks and recommend an appropriate work
rate and incorporate a work ramp-up (break-in) period for
new hires.
AN ESPECIALLY TROUBLING RECOMMENDATION
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To evaluate your progress in addressing these hazards, OSHA is seeking
information on the following:
•Provide a description of any engineering and administrative controls the
company may have implemented to address these hazards, including
adding mechanical devices, modification to employee workload, changes to
the way injuries are addressed, or any other changes which you feel may
have impacted the hazards identified in OSHA's initial letter. This includes
any controls recommended by OSHA during the inspection or other controls
implemented by your company.
•Provide a list and a description of any training provided to your employees
that addresses ergonomic hazards associated with their job and early
recognition of ergonomic injuries and illnesses.
•Provide a copy of OSHA's 300 and 300A forms, Log of Work-Related
injuries and Illnesses, beginning with the year of the original inspection
until the present.
OSHA 2014 FOLLOW UP ONE YEAR LATER AND
THEIR INFORMATION DEMAND
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• Provide an estimate of the number of hours worked or
number of full-time employees for each employee whose
job title(s) is (are) loader, selector, and unloader by year
beginning with the year of the original inspection.
• Inform OSHA if your company retained the services of a
professional ergonomist to perform a full evaluation of
your operation and make recommendations for
improvements on equipment, work practices, policy
development and employees training. If you did, provide a
copy of the evaluations and specific recommendations
made by the professional ergonomist.
OSHA 2014 INFORMATION REQUEST
(CONTINUED)
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To evaluate your progress in addressing the hazards identified, we are seeking the
following information:
• Any controls you may have implemented to address these hazards, including
adding mechanical devices, redesigning workstations, modifications to employee
workloads, changes to the way injuries are addressed, or any other changes
which you feel may have impacted the hazard identified in OSHA's letter. This
includes any controls recommended by OSHA or other controls implemented.
• A list of the types of training provided to your employees to address these
hazards.
• Copies of OSHA's Form 300, Log of Work-Related Injuries and Illnesses.
• An estimate of the number of hours worked or full-time employees for each
employee whose job titles are service representative and/or service
representative helpers, by year beginning with the year of the original inspection.
• An evaluation of the effectiveness of the controls.
2014 OSHA FOLLOW-UP LETTER FOCUSING ON
MERCHANDISERS AFTER FIRST INSPECTION
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• Employees working as service representatives and/or their helpers
were exposed to risk factors that are causing or likely to cause
Musculoskeletal Disorders (MSDs). These MSD risk factors include
actions such as, but not limited to, improper lifting techniques,
twisting and bending motions, forceful exertions, and repetitive
motions occurring for prolonged durations during the delivery of
beverages to the customers.
• Since no specific OSHA standards apply, and it is not considered
appropriate at this time to invoke Section 5(a)(1), the general duty
clause of the Occupational Safety and Health Act, no citations will be
issued for this hazard(s)pursuant to Section 21 of the Act which
authorizes OSHA to train employers and employees about workplace
hazards and appropriate abatement methods, it is recommended that
the following actions be taken to eliminate or reduce the hazard as
described above.
INITIAL 2013 INSPECTION CONCLUSIONS
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Conducting on-site evaluations to ensure that employees are
following the established procedures for the delivery of products to
the customers.
a) Providing employees with refresher ergonomics training at
least annually or more frequently when an employee's
evaluation shows that the employee is not following proper
procedures.
b) Review and update the ergonomics program to ensure that
the company is following current ergonomics guidelines and
the training is effective.
OSHA’S 2013 RECOMMENDATIONS (CONTINUED)
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• Been around since 1990;
• Requires trained economists;
• OSHA prescriptively applies the Equation;
• Claims no one should lift more than 51 pounds;
• Suspicious of Team Lifting.
OSHA’S USE OF 2015 NIOSH LIFTING EQUATION
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• Lift tables, etc. for separating pallet issues;
• Acute Care Hospital example – patient lifts in every
room
OSHA’S 2015 DEMAND FOR
ENGINEERING CHANGES
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THANK YOU!
Howard A. Mavity
hmavity@laborlawyers.com
Direct: 404.240.4204
Cell: 404-277-8596
This presentation does not constitute legal advice.
Every situation is different and may require consultation
with counsel.
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