Why register? ...To Enhance Your Experience
+ Reply to Thread
Results 1 to 7 of 7
  1. #1
    MembersZone Subscriber MalahatTwo7's Avatar
    Join Date
    Mar 2002
    Location
    Loco madidus effercio in rutilus effercio.
    Posts
    12,828

    Default Safety From A Viewpoint We Don't Like To Look At

    Terrorism & OSHA: Part 1

    Is Guarding Workers Against Terrorist Attack a Legal Obligation?

    By Glenn Demby, Esq.

    "Typically, OSHA works with employers at sites they control. They usually know what the hazards are, and it's a matter of ensuring that workers are protected against these risks. Terrorism is a completely different case. The hazards are not endemic to the workplace. They are unexpected and may be unknown. . . . That changes the climate."

    -- John L. Henshaw, Former OSHA Director, from a speech to the American Postal Workers Union, January 11, 2002

    Terrorism isn't usually thought of as a workplace health and safety issue. But the terrorist threat permeates all aspects of our lives, including work. We're especially vulnerable when we're working -- whether we're actually in the workplace or commuting to and from it:

    Many of the victims who died in the recent attacks on the subways and buses of London met their fate while on their way to work.

    Most of the victims of the September 11 attacks were at work when they died, including the office workers at the World Trade Center and Pentagon and rescue workers trying to save them. (In addition, many of the passengers on the planes used in the attacks were business travellers.)

    Most of the victims of the October 2001 anthrax attacks were postal workers who became exposed while doing their jobs.
    In short, terrorism is a work hazard -- albeit a non-traditional one. So it's appropriate and important to ask this question: What are the legal obligations of employers to protect employees against acts of terrorism? This series will attempt to answer that question.

    OSHA & Terrorism

    Employers have a duty to provide their employees a safe and healthy workplace. The primary source of this duty is the OSHA law. But, as former OSHA Secretary Henshaw suggests in the remarks cited above, the OSHA system wasn't designed with the terrorist threat in mind.

    Terrorism represents a different kind of hazard. According to Henshaw, "this is not a matter of ignorance of the law or neglect of responsibilities or poor maintenance or malfunctioning equipment. It's a matter of malice aforethought on the part of persons unknown."

    The attacks of September 11 have forced OSHA to confront this new threat. The challenge for OSHA is to figure out how to adapt a 20th century regulatory scheme to 21st century conditions.

    OSHA's General Policy

    OSHA has no specific standard or regulation covering terrorism in the workplace. One of the things OSHA could have done to deal with terrorism was create one. After all, creating new standards in response to new (or at least newly recognized) hazards is part of OSHA's mandate and past modus operandi. For example, in 200 OSHA tried to put into effect a new standard to prevent ergonomics injuries.

    But OSHA has apparently rejected the option of creating a new standard on terrorism. There are currently no plans to create such a standard -- at least that I'm aware of.

    OSHA's current policy seems to be to treat terrorism not as a matter of enforcement but voluntary cooperation with employers. The approach is to offer support, not to threaten citations. The first suggestion of this approach was OSHA's response to the anthrax crisis in October 2001. Here's how Henshaw described that effort:

    "We find ourselves partners with both workers and employers in thwarting the goal of the terrorist -- to hurt and kill as many people as possible. Our role [in the anthrax crisis] has been one of sharing our expertise on sampling, decontamination methods and personal protective equipment. This is `safety and health assistance' in the best possible sense."

    In furtherance of this policy, OSHA (and other government agencies such as the Department of Homeland Security and the Federal Emergency Management Association) has offered general advice and guidelines on dealing with terrorism. For example, OSHA has posted on its website a matrix that employers can use to assess the risks of various terrorist hazards and determine appropriate measures to protect employees.

    The legal underpinnings of the current policy is the part of the OSHA statute that authorizes OSHA not only to enforce the safety laws but to advise employers and employees on effective means to prevent occupational injuries and illnesses. This is "the health and safety assistance" Henshaw refers to in the quote above.

    The Enforcement Side

    The fact that OSHA doesn't have a standard on terrorism and chooses to treat the issue as a matter of outreach and cooperation does not mean that employers have no legal obligations under the OSHA rules to protect their employees against terrorist-related hazards. On the contrary, some of the traditional OSHA standards and rules apply to terrorism. Next week, in Part 2 of this series, we'll look at two of them: The HAZWOPER Standard and the General Duty Clause.
    ---------

    The Canadian Perspective

    Although it deals with American laws and institutions, the article above is generally relevant to Canadians. Provincial, territorial and federal OHS regulators in Canada have been confronting the same challenge as OSHA since September 11: Adapting an old regulatory scheme to a new kind of health and safety hazard.

    The legal situation in Canada is also much the same as it is in the U.S. -- but on a provincial level. The facts:

    Each province's OHS law is designed to deal with traditional workplace hazards within the employer's control such as machine safety and hazardous chemicals;

    None of the provinces have specific rules on terrorism;

    There are parts of each province's OHS laws that apply to terrorist threats. For example, each province requires employers to provide some form of emergency planning and preparedness. Each province also has a General Duty clause.
    This means that the analysis above and in next week's issue do relate to what's going on in Canada.
    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.


  2. #2
    MembersZone Subscriber MalahatTwo7's Avatar
    Join Date
    Mar 2002
    Location
    Loco madidus effercio in rutilus effercio.
    Posts
    12,828

    Default

    Terrorism & OSHA: Part 2

    HAZWOPER & Emergency Action Plans

    By Glenn S. Demby

    As noted last week, OSHA considers the threat of terrorist attack to be a workplace hazard but treats it as what former Secretary Henshaw characterizes as "a completely different case." Accordingly, there is no OSHA standard on terrorism and no plans to create one. But that raises a key question:

    How do the existing OSHA standards apply to terrorist-related hazards?

    Relevant Standards

    OSHA has published two standards requiring employers to take steps to protect employees in emergency situations including, arguably, terrorist attack:

    1. HAZWOPER

    The Hazardous Waste Operations and Emergency Response Standard, (1910.120), is designed to protect workers working at hazardous waste sites, treatment, storage and disposal facilities or responding to an emergency involving the release of a hazardous substance.

    2. Emergency Action Plans

    The Emergency Action Plans standard, (1910.38), sets out requirements employers must follow when they're required to create an emergency plan under another OSHA standard, e.g., in the event of fire. Plans must be in writing, reviewed with employees and include, among other things, escape routes and procedures, employee accounting after an emergency evacuation and rescue and medical duties.

    How the Standards Apply to Terrorism

    The original intent of both the HAZWOPER and Emergency Action Plans standards was to protect against accidental spills and releases of hazardous substances (in the case of HAZWOPER), or fires and other emergencies (in the case of Emergency Action Plans).

    Would a terrorist attack involving the deliberate release of toxic chemicals, biological agents and other hazardous substances trigger employer obligations under HAZWOPER?

    Similarly, would an employer's obligation to plan evacuation routes and procedures and take other precautions under the Emergency Action Plan standard apply to the deliberate detonation of a bomb or other form of terrorist attack?

    OSHA has issued two interpretation letters directly answering these questions: One on November 24, 2003 written by Enforcement Director Richard Fairfax (the Fairfax Letter); and one personally written by Henshaw on May 24, 2004 (the Henshaw Letter). OSHA took the same position in each case:

    Terrorist Planning Is Not Required

    According to the Henshaw Letter, "terrorist events are not considered foreseeable workplace emergencies for purposes of OSHA standards requiring employers to anticipate and prepare for such emergencies." The Fairfax Letter includes a similar statement: "Terrorist events are not considered foreseeable emergencies that OSHA expects an employer to reasonably anticipate in the workplace."

    Both letters make the point that employers should seek the help of the Local Emergency Planning Community if they choose to consider the risk of terrorist attack as part of their emergency response plan .

    Subsequent language in the Henshaw Letter states the point more explicitly: "While following the direction of [HAZWOPER and the Emergency Action Plans standards] would not be required specifically to prepare for a potential terrorist event in an office building, following the elements of these standards may also be of assistance to employers in developing a useful plan of action to respond to any emergency situation." (emphasis added)

    The Bottom Line: Neither HAZWOPER nor the Emergency Action Plans standards require employers to plan for a terrorist attack. OSHA hopes they will but won't cite them if they don't. "OSHA's role," the Henshaw Letter explains, "is not limited to enforcement, but includes a mandate to advise employers and employees and organizations . . . as to effective means of preventing occupational injuries and illnesses."

    This approach is perfectly consistent with the carrot-over-the-stick policy enunciated by Secretary Henshaw in his speech to the postal workers union after the anthrax crisis of October 2001 that we discussed last week.

    OSHA Applies to Response to Terrorism

    However, there's another side to the OSHA policy. OSHA draws a line between planning for terrorist attack and responding to it. In other words, employers aren't required to prepare for a terrorist event; but once it occurs, the usual OSHA obligations apply.

    For example, HAZWOPER requires employers to take certain steps to protect rescue workers who respond to hazardous releases. Employers must follow these requirements even if the release is the deliberate act of a terrorist. According to the Henshaw Letter, "the release of chemicals or hazardous substances into a workplace, whether it is caused by an accidental release or a terrorist event would . . . be considered a hazardous materials incident" triggering requirements governing the protection of emergency responders and workers performing remediation efforts. The Fairfax Letter includes similar language.

    Conclusion

    Under current OSHA interpretation, employers who don't include the risk of terrorist attack as part of their emergency planning obligations aren't at risk of citation. However, if an event occurs and the hazard is created, the usual OSHA standards apply. This is true whether the event is an accident or the result of deliberate action by a terrorist.

    Next week we'll look at how the OSHA General Duty Clause and Recordkeeping Requirements apply to terrorism.

    EDITOR'S NOTE
    The OSHA Matrix

    Last week's article referred to an OSHA terrorism matrix that employers can use to determine the risk of terrorist attack. This isn't quite right. There is no single terrorism matrix. OSHA has in fact created four separate matrices related to terrorist risk:

    1. Anthrax Risk Matrix: http://www.osha.gov/SLTC/etools/anth...al.html#matrix

    2. Matrix on Risks Faced by Emergency Responders: http://www.osha.gov/SLTC/emergencypr...rix/index.html

    3. Evacuation Matrix: http://www.osha.gov/dep/evacmatrix.html

    4. Fire & Explosion Planning Matrix: http://www.osha.gov/dep/fire-expmatrix/index.html

    Sorry for any confusion.

    Glenn Demby
    Editor-in-Chief
    SafetyXChange


    The Canadian Perspective

    Although the general approach of OSHA to terrorism is similar to what happens in Canada, this piece deals with interpretations of U.S. standards by U.S. regulators. So it's not really relevant in Canada.

    Here's something you'll find more useful:

    C-45 QUIZ

    Background: To convict an individual of a crime under C-45, the Crown must prove 4 things beyond a reasonable doubt:

    The individual directed or had authority to direct work
    The individual didn't take "reasonable steps" to protect the injured worker
    The failure to protect was wanton or reckless disregard for life and safety
    The offence resulted in bodily harm
    The Situation: A trained forklift driver parks his vehicle on an incline and gets out. The driverless forklift begins to roll backward down the incline and seriously injures a worker. The investigation shows that the driver had applied the parking brakes but they were defective. Provincial OHS law requires that forklifts be thoroughly inspected at least once a month. The forklift in question hadn't been inspected for over six months. If it had been it would have been pulled from service and the accident would have never happened. The supervisor in charge knew that there could be a problem but didn't care enough to do anything about it.

    Question: Would the supervisor be guilty of criminal negligence under C-45?

    Answer: Probably

    Explanation:

    All 4 elements are in place.

    The supervisor directed or had the authority to direct how the work was done.

    The supervisor violated the duty to take reasonable steps to protect. How do we know? Because he didn't follow the OHS law. That would most likely constitute failure to take reasonable steps.

    The supervisor appears to have shown wanton and reckless disregard of life and safety. Knowing about a danger and not caring enough to do anything about it would likely be enough to show wanton and reckless.

    A worker suffered bodily injury as a result of the supervisor's offence.
    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.

  3. #3
    MembersZone Subscriber MalahatTwo7's Avatar
    Join Date
    Mar 2002
    Location
    Loco madidus effercio in rutilus effercio.
    Posts
    12,828

    Default

    Terrorism & OSHA: Part 3

    The General Duty Clause

    Let's review what we've discussed in the first two parts of this series:

    OSHA considers the risk of terrorist attack a workplace hazard but an untraditional one;

    There's no OSHA Standard on terrorism and no plans to create one OSHA's policy is to offer assistance to employers and encourage rather than force them to guard workers from terrorism;

    OSHA chooses not to interpret existing OSHA Standards as applying to the risk of terrorist activities;

    If hazardous conditions are present, the usual OSHA protections are necessary, even if it was a terrorist incident that caused the hazard.

    A final question remains: Does the OSHA General Duty Clause require employers to rid the workplace of terrorism-related hazards?

    The General Duty Clause

    The Occupational Safety & Health Act of 1970 is the law that founded OSHA and the federal workplace safety regulatory system we know today. Section 5(a)(1) of that law establishes a duty on the part of employers to "furnish a place of employment [that is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees."

    This is known as the General Duty Clause. Its function is to enable OSHA to crack down on workplace hazards not covered by a specific OSHA Standard.

    Example: OSHA inspectors identified more than 300 cases of cumulative trauma disorders such as carpal tunnel syndrome and rotator cuff injuries at a poultry plant. OSHA doesn't have a standard on ergonomics. So it cited the plant for violating the General Duty Clause. The plant eventually paid $200,000 to settle the charges [Secretary of Labor v. Hudson Foods, Inc.].

    Terrorism and the Clause

    In theory, OSHA could use the General Duty Clause to cite an employer for not protecting workers against terrorist hazards the way it did for not preventing ergonomics risks. So far, it hasn't done this. And, it's unlikely to do so in the future.

    Explanation: The General Duty Clause doesn't require employers to ensure against all hazards that cause death or serious bodily harm-only "recognized" ones. Is terrorism a "recognized" hazard?

    The term "recognized" isn't defined in the OSHA statute. Some federal courts have interpreted it to mean dangerous conditions that can be detected by the senses that are generally known to be hazardous. See Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981). Terrorism would clearly be considered a recognized hazard under this interpretation.

    But other courts have held that a hazard must be foreseeable to be considered recognized. See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 317 (5th Cir. 1984). It would be tough to make the case that terrorist attack is foreseeable. As we discussed last week, OSHA has issued two interpretation letters stating that it doesn't consider terrorism to be a foreseeable risk for purposes of applying the HAZWOPER or Emergency Action Plans Standards. Presumably, the same interpretation would apply to application of the General Duty Clause.

    More importantly, the use of the General Duty Clause to cite an employer for not doing enough to protect workers against terrorism would be completely inconsistent with the current OSHA policy of treating terrorism as a non-traditional hazard. It would also deviate from the OSHA approach of using the carrot rather than the stick to get employers to combat terrorist risks in the workplace.

    Conclusion

    Structurally, there's nothing in the regulatory scheme to prevent OSHA from treating terrorism like any other workplace hazard. OSHA has the authority to develop a standard covering terrorism. It can also use existing standards and statutory obligations to force employers to protect workers against terrorist threats in the workplace.

    But that's not the way the current OSHA administration wants to go. OSHA is prepared to encourage but not compel employers to deal with terrorism. Some may consider this a bad policy; others may applaud it. All that's clear is that it's not likely to change before the next presidential election in 2008.

    The Canadian Perspective

    This article is both relevant and irrelevant to Canadians:

    The Relevant Part: The Canadian OHS regulatory structure is similar to the OSHA scheme, albeit on a provincial level. Most of the Canadian provincial and territorial governments recognize that terrorism poses a hazard to workers. But none of them have adopted a standard or set of regulations dealing specifically with terrorism. However, as does OSHA, Canadian OHS regulators have at their disposal existing regulations and laws that they can apply to terrorism. This includes emergency preparedness planning requirements. In addition, each of the OHS laws includes a General Duty Clause. So the potential exists to make employers adopt measures to protect against terrorism.

    The Irrelevant Part: The fact that the current OSHA leaders in the U.S. don't choose to apply these rules to terrorism doesn't affect Canadians not living under their jurisdiction. Your regulators might feel differently. It's all a question of policy. Policy, in turn, is based on the existing climate and the people running the various Ministries of Labour or other regulatory agencies in charge of OHS matters.

    Although I don't want to engage in speculation, I will note that the difference between workplace safety regulatory climates on each side of the border is like night and day. In a reversal of historic trends, Canadian regulators have become much more aggressive on the enforcement front than their U.S. counterparts. Charges and citations are up in just about every province; in the U.S., they're just chugging along at the same basic rate.

    CANADA QUIZ
    Most Americans probably didn't realize that August 1 was a major civic holiday in Canada. In fact, there's a lot about our neighbors to the North that most of us Americans don't know. Here's a little quiz to test your knowledge of things Canadian. If you're from Canada, you'll find these questions absurdly easy. But if you're American, they might be tough. Next week, in the interest of equal time, we'll do a U.S. Quiz for our Canadian members.

    1. The province in Canada with the most people is:
    Quebec
    Ontario
    British Columbia
    Nova Scotia

    2. The capital of Canada is:
    Toronto
    Montreal
    Ottawa
    Vancouver

    3. The Prime Minister of Canada is:
    Jean Chretien
    Paul Martin
    Rene Levesque
    Brian Mulroney

    4. The basic unit of Canadian currency is the:
    Dollar
    Franc
    Euro
    Pound

    5. Here's a list of places in Canada. List a "P" if it's a province or a "C" if it's a city:
    Alberta
    Saskatchewan
    Calgary
    Edmonton

    6. Which of the following beers is NOT Canadian:
    Molson
    Labatt's
    Amstel
    Moosehead

    7. Which of the following teams won the Grey Cup (the Canadian equivalent to the Super Bowl) last year:
    Toronto Argonauts
    Montreal Alouettes
    Saskatchewan Roughriders
    BC Lions


    ANSWERS



    1: b; 2: c; 3: b; 4: a; 5: Alberta-P; Saskatchewan-P; Calgary-C; Edmonton-C; 6: c. 7: a
    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.

  4. #4
    Forum Member
    Join Date
    Mar 2004
    Location
    Memphis Tn,USA-now
    Posts
    5,436

    Default

    Given that so many companies bar their workers from having a firearm in their vehicle,even if they are heading out after the whistle blows to go hunting for the weekend,I doubt that they'd figure keeping their employees alive in the event of a terrorist attack is any higher on the priority list.
    That oughta scare the Hell out of any terr,the mere thought that after infiltrating a company to learn the weak points of its security,that they'll get caught in a random search and sent home without a job.

  5. #5
    MembersZone Subscriber MalahatTwo7's Avatar
    Join Date
    Mar 2002
    Location
    Loco madidus effercio in rutilus effercio.
    Posts
    12,828

    Default

    That oughta scare the Hell out of any terr,the mere thought that after infiltrating a company to learn the weak points of its security,that they'll get caught in a random search and sent home without a job.
    Ain't that the truth eh? LOL
    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.

  6. #6
    Early Adopter cozmosis's Avatar
    Join Date
    Jan 1999
    Location
    Arkansas
    Posts
    1,921

    Thumbs up O Canada! Our home and native land!

    Quote Originally Posted by MalahatTwo7
    Most Americans probably didn't realize that August 1 was a major civic holiday in Canada. In fact, there's a lot about our neighbors to the North that most of us Americans don't know. Here's a little quiz to test your knowledge of things Canadian.
    For the record, I bombed questions 1-3 and nailed 4-7. Never have I been so proud of a 57%.

  7. #7
    Forum Member Co11FireGal's Avatar
    Join Date
    Feb 2002
    Location
    Country Roads, Take Me Home...
    Posts
    721

    Default

    Those were interesting articles...thanks for posting them.

    Left me thinking...the way we respond to haz-mat incidents is regulated, and as the article mentioned, terrorist incidents are considered haz-mat. Now, being in a volly dept. with a rather tight budget, the thought of another OSHA regulation worries me. Well, it would more-so but WV is not an OSHA state...anyway, can you imagine what an OSHA regulation like that could do to fire departments?

    It would be great if every dept. could have the equipment to really be safe in dealing with haz-mat/terrorist incidents, but we can't. If we were required to, we'd be shutting the doors instead because there is no way we could afford it. It would be easy to say, yeah okay my butt is on the line if we get the big one, so fire departments should make a firefighter's workplace safe and provide haz-mat PPE and other equipment...BUT can we REALLY do that with such limited funding? Not a chance.

    Use grant $$$ to comply?? Yeah right... The Homeland Security grants are a great thing, but they sure haven't helped my dept. any. Around here, they have just made the already well-off depts. even more well-off.
    IACOJ

    "And let us not grow weary while doing good, for in due season we shall reap it if we do not lose heart."

Thread Information

Users Browsing this Thread

There are currently 1 users browsing this thread. (0 members and 1 guests)

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts