BLACK LUNG HIGH ON MAIN’S AGENDA

In his first meeting with reporters since taking the top job at the Mine Safety and Health Administration in October, Joseph Main outlined several priority safety issues getting his attention.

Main said the agency intends to propose new rules shortly that will target reducing miners’ exposure to respirable coal mine dust – the source of dreaded black lung disease. Proposals likely will mandate miners’ use of new wearable personal dust monitors that measure exposure to coal dust in real-time instead of devices in use today that only record dust levels for later analysis, Main said Nov. 20 in a conference call with reporters.

The new monitors, which Main said he has sampled, will give miners and operators immediate feedback when dust concentrations are unacceptably high. The agency is receiving comment from stakeholders on the devices through a request for information published Oct. 14. Comments are due by Dec.14.

MSHA and NIOSH have been working intensively on certifying new dust monitors since 2006 as per the landmark Mine Improvement And New Emergency Response Act (MINER Act) that year, and MSHA held a public hearing July 8 at its headquarters in Arlington, VA. NIOSH has estimated that more than 10,000 miners have died of black lung -- clinically called pneumoconiosis – over the past decade. The disease, which causes scarring of the lungs and premature death, had decreased dramatically in the United States from 1969 to 1995, but prevalence of black lung cases has more than doubled in recent years, notably among younger underground miners, according to experts.

Looking at other priorities, Main, who served as administrator of United Mine Workers of America’s Occupational Safety and Health Department for 22 years starting in 1982, told reporters MSHA also would step up protocols for mine emergency preparedness, lamenting confusion that has occurred in recent years during disasters. The MINER Act called for enhanced mine emergency response standards.

Main said workforce training and addressing hazards of deep mines in the West also merit his attention.

Main said the industry is in transition as the population of miners has decreased dramatically over about three decades. New miners are coming into the industry amid retirements with scant experience, and these workers need additional training, he said.

On deep mines, such as in Utah where the 2007 Crandall Canyon disaster killed six miners and three rescuers, Main said MSHA will look harder at issues involved with deep mining and make some determinations on safety. Officials have said the weight of the mountain above the Crandall Canyon mine placed too much force on its tunnel structure.

More: MSHA coal dust monitor Request for Information, NIOSH Science Blog on black lung

Photo: Dust Monitor, CDC

SENATE PANEL APPROVES OSHA NOMINEE

The nomination of David Michaels as the next head of OSHA cleared a key hurdle today -- passage out the Senate Health, Education, Labor and Pensions Committee. Michaels now awaits a vote in the full Senate.

The HELP Committee approved the nomination on a voice vote, but two committee Republicans, Sens. Tom Coburn, OK, and Richard Burr, NC, had their votes recorded as “no.” The committee acted on the nomination without the benefit of holding a confirmation hearing, a move panned by both critics and some supporters. But the committee chairman, Sen. Tom Harkin, D-IA, contended that Michaels' views were widely known and committee members had the opportunity to fully vet the nomination and vote as they believed appropriate.

Michaels' nomination has been controversial as a number of conservative and business groups have voiced their opposition in a barrage of talking points over recent weeks. Opponents have decried Michaels, an epidemiologist and interim chair of the Department of Environmental and Occupational Health at the George Washington University’s School of Public Health and Health, as being out of the mainstream for what they said is his zeal in applying unproven science to business regulation.

More: Nov. 18 HELP Committee hearing on Michaels Nomination (vote comes at the end)

OSHA INTERVIEWS DUE ON RECORDKEEPING

A Government Accountability Office report released Nov. 16 is confirming what many occupational safety and health practitioners know -- that underreporting of injuries and illnesses is a serious and perhaps rampant problem.

OSHA accepted the recommendations in the report, including agreeing to the key GAO suggestion that it require its compliance officers to conduct interviews with workers during workplace recordkeeping inspections. This concession, along with the National Emphasis Program on recordkeeping the agency instituted on Oct. 1 that increases internal resources to address the issue, vastly ups the stakes for employers facing compliance.

The report particularly criticized the practice of “disincentives” that it says many employers have adopted to keep down recorded injuries and illnesses. Some healthcare practitioners told the GAO they were pressured by employers to withhold medical treatment so companies could avoid filing injury reports with OSHA.

“Workers may not report a work-related injury or illness because they fear job loss or other disciplinary action, or fear jeopardizing rewards based on having low injury and illness rates,” the GAO said. “Worker interviews are the only source of information used during the audit not provided by the employer.”

OSHA to Explore Incentive Programs
OSHA confirmed to the GAO that the agency does not officially bar incentive programs or practices even if they may affect workers’ decisions to report injuries and illnesses, according to the report. However, an OSHA official said in light of the report that the agency would explore during the recordkeeping NEP the possible impact such programs have on workers' reporting of injuries and illnesses, the GAO said, and cite employers under Occupational Safety and Health Act authority if they discourage inaccurate reporting.

Labor Secretary Hilda L. Solis described many of the problems identified in the report as “quite alarming” and promised strong enforcement action when OSHA finds underreporting.

OSHA told the GAO, which provides audits for Congress, that its previous policy on interviewing workers during recordkeeping checks has been optional for inspectors. In a response from OSHA acting administrator Jordan Barab that is contained in the report, Barab said the agency would move quickly to implement the recommendations. Since OSHA was given a copy of the report several weeks ago before it was released publicly Nov. 16, implementing the recommendations is likely already occurring.

Underreporting of injuries and illnesses has emerged as a top-line safety and health issue and has been the subject recent congressional oversight hearings and reporting. The underlying implication contends that data OSHA collects from employers is vastly inaccurate and misleading – leading to underreporting of workplace injuries and illnesses.

Critics have claimed that many severe injuries never make it into the OSHA recordkeeping system, and many have urged that counting be expanded to include other types of data beyond what OSHA complies from employers on OSHA logs, such as hospital or workers’ compensation records. The U.S. Bureau of Labor Statistics reports annually on data OSHA collects in surveys on work-related injuries and illnesses, but does not verify the accuracy of the data, the GAO said.

Education, Training on Recordkeeping Urged

Among other recommendations, OSHA and the Department of Labor should increase education and training to help employers better understand recordkeeping requirements, the GAO said. Many employers and industry groups have said the system of recordkeeping is confusing and that may contribute to the undercount.

Sen. Patty Murray, D-WA, chair of the Subcommittee on Employment and Workplace Safety of the Health, Education, Labor and Pensions Committee, issued a statement that the GAO report means employers cannot be taken “at their word” to substantiate worker injuries and illnesses. Murray, whose subcommittee provides oversight of OSHA, was one of several congressional officials that had requested the report.

More: GAO report

Photo: Sen. Patty Murray, D-WA (AP)

COMBUSTIBLE DUST HEARINGS DEC. 14

OSHA has set the stage for an ambitious if not dramatic rulemaking process to address hazards from combustible dust explosions.

Two stakeholder meetings to receive public input are scheduled for Dec. 14 in Washington, one in the morning and one in the afternoon. The agency hopes to hear from as many as 70 stakeholders. The meetings are vital to the rulemaking process as they will offer representatives from labor and industry, as well as professional workplace safety managers, the opportunity to provide feedback into the rulemaking.

Additional unannounced stakeholder meetings are planned for early 2010 and are likely to be held around the country.

OSHA published an advanced notice of proposed rulemaking Oct. 21 to solicit comments, data and other information on issues related to combustible dust hazards in the workplace. The intent of the standard will be to "comprehensively address the fire and explosion hazards of combustible dust," according to OSHA.

Combustible dust hazards can have broad safety and health implications covering industries that include food, wood product, pharmaceutical, tire, chemical, textile and furniture manufacturing, grain and coal handling and metal processing.

The hearings give those outside the agency their best opportunity to help shape the rule. To their credit, OSHA staff want that input, understanding the agency needs a valuable adjunct to their own expertise.

In somewhat of a twist, OSHA is designing the meetings more as group discussions on concerns and issues surrounding combustible dust hazards – rather than singular formal presentations as is typical.

Additionally, missing from the meetings should be the specter of politics. Both of Georgia’s Republican senators, Johnny Isakson and Saxby Chambliss, have endorsed a combustible dust regulation. One of the seminal, tragic events involving dust occurred, of course, in their state, the Feb. 7, 2008, explosion at the Imperial Sugar refinery in Port Wentworth near Savannah that killed 14 people and injuries scores of others.

More: Details on OSHA combustible dust hearings, OSHA combustible dust rulemaking, U.S. Chemical Safety Board safety video on Imperial Sugar.

OSHA: USE OF GHS SCHEMES OK

In a recent Letter of Interpretation, OSHA is signaling its "qualified" acceptance of provisions of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, or GHS – with the proviso that any labeling and material safety data sheets adhere to its hazard communication standard.

OSHA’s reply comes at a time when the agency is advancing long-anticipated rulemaking that aligns GHS and its HAZCOM rule. Under the standard, OSHA requires employers to maintain a recognition, labeling and training program for workers exposed to hazardous chemicals in the workplace. GHS is a global standard used in Europe and other countries worldwide that addresses inconsistencies in hazard classification and communications, though it has not yet been formally adopted in the United States despite widespread agreement of its merits.

In response to an inquiry from the safety manager of a Wood Dale, IL manufacturer of industrial inkjet printers, OSHA said it would not pursue enforcement activity against U.S. firms that use GHS labeling classification schemes "as long as the (European Union) GHS label contains the information required" by its HAZCOM rule, 29 CFR 1910.1200. If provisions are met, "OSHA will consider the EU GHS label sufficient," Richard Fairfax, OSHA director of the Directorate of Enforcement Programs, wrote Oct. 6.

Benjamin Garth Studebaker, safety manager at Videojet Technologies Inc., had written OSHA April 20 seeking clarification. Videojet Technologies uses ink products in manufacturing, some of which are considered hazardous to workers and subject to regulation in the United States, Canada and Europe.

In his inquiry, Studebaker had sought to ensure that his company's use of EU GHS labels was in line with the spirit and intent of OSHA’s HAZCOM rule.

Fairfax cautioned employers to be diligent in conforming to the HAZCOM rule against GHS because differing classification schemes "may affect the information provided on both the safety data sheet and the label."

Fairfax additionally pointed out in his letter that employers under OSHA’s HAZCOM rule must meet obligations that are "distinct" from those of manufacturers, importers or distributors of chemical products. For instance, employers are not held responsible under the rule for inaccurate information on the data sheet or label that they accepted in good faith but did not prepare.

OSHA, with broad support of labor and industry interests in the United States, is promulgating rulemaking on GHS to remedy inconsistencies globally with its HAZCOM rule. One benefit of the GHS is that its labeling schemes include the use of signal words, pictograms and hazard and precautionary statements as a way to enhance worker comprehension and thus reduce chemically related fatalities, injuries, and illnesses.

OSHA published a Notice of Proposed Rulemaking on GHS in the Federal Register Sept. 30, saying it would be the first in a series of aggressive steps to get a rule on the books. A 90-day comment period runs through Dec. 29, and the agency is expected to convene a series of public hearings early in 2010. Under the rulemaking, GHS alignment would be phased in over three years.

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More: OSHA GHS Letter of Interpretation, OSHA hazard communication standard, OSHA rulemaking on GHS

'SICK LEAVE' BILL ADVANCING

Congress is moving swiftly to enact temporary legislation to provide mandatory sick leave for workers sickened by the H1N1 virus and other influenza-related illnesses.

Any legislation is sure to give the business lobby heartburn, but this is a train that seems to be leaving the station with dispatch. Congress and the federal bureaucracy have made it a priority in recent years to be attentive to issues involving public preparedness, and mandatory sick leaves falls in that policy junction.

Both the Senate Health, Education, Labor and Pensions Committee and House Education and Labor Committee have planning hearings for Nov. 10 and the week of Nov. 16, respectively. Education and Labor Committee leaders, Rep. George Miller, D-CA, the committee chairman, and Rep. Lynn Woolsey, D-CA, introduced the Emergency Influenza Containment Act (HR 3991) on Nov. 3.

Expect a companion bill from the Senate following the HELP Committee hearing. If Sen. Tom Harkin, D-IA, HELP Committee chairman, sponsors the bill, like his House counterpart Miller that will give the effort additional urgency.

Five Days of Leave

The Miller-Woolsey bill, titled the Emergency Influenza Containment Act, would mandate paid sick leave to full-time and part-time workers being told to leave work or not come to work because the employer believes the employee has symptoms of a contagious illness or has been in close contact with someone showing symptoms of a contagious illness. The legislation defines a contagious illness as "influenza-like-illnesses," such as the spreading H1N1 virus.

The legislation would determine the amount of sick leave for covered workers based on calculating their regular pay rate and scheduled work hours, up to five days of paid leave. If workers continued to be sick, they could go on unpaid leave under the Family and Medical Leave Act or other employer sick leave polices, thus protecting their jobs, according to provisions of the legislation.

The legislation directs the Department of Labor to establish guidelines for implementation, but does not specify how it would be enforced if passed. OSHA could get that role as it already has a considerable workplace enforcement apparatus in place. Co-sponsor Woolsey chairs the Workforce Protections Subcommittee under Education and Labor, the sub-panel with primary oversight authority over OSHA in the House.

Misgivings from Business

The bill has met with early criticism from organizations that represent businesses, including the National Federation of Independent Business and U.S. Chamber of Commerce, but it appears to be written in a way to try to mollify expected opposition. For instance, the legislation would exempt small employers and companies that already provide five or more paid sick days per year, and it would not apply to employers with fewer than 15 employers.

Workers also would not be covered simply by calling in sick on their own, but would have to directed by their employer to stay home. However, workers will benefit from a provision that prohibits their being fired or disciplined when they comply with the employer’s directive to stay home or not come to work.

That Congress would seek to enact emergency H1N1 legislation is not unexpected. Federal authorities through OSHA, the Centers for Disease Control and Prevention and other agencies have advised employers in the strongest terms for many months to establish their own flexible policies regarding sick leave for contagious workers struck by influenza-related illnesses.

40 Percent Lack Sick Leave
Signaling urgency to the legislative action is the recent New York Times article that cited government statistics in reporting that nearly 40 percent of all private-sector workers do not receive paid sick days – thus precluding many of them from deciding to stay home if they are sick since they would not be paid.

The Times story also quoted a 2008 survey that found that 68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness, while 53 percent eligible for paid sick days said they had done so as well.

Miller said a CDC report that estimates that a sick worker will infect one in 10 coworkers offers sufficient justification for legislation.

Congress historically enacts emergency legislation sparingly. In 2008, legislation was sponsored to address the agriculture labor shortage in California, for instance, and it considered emergency medical legislation for Hurricane Katrina victims.

More: Emergency Influenza Containment Act, New York Times sick leave article

Photo: Rep. George Miller (Source: House Education and Labor Committee)

POLITICS OF SAFE PATIENT HANDLING

Health-care workers are rallying again around legislation that would compel hospitals and nursing facilities to install patient handling equipment to stem a staggering tide of lifting musculoskeletal injuries.

The issue of a federal standard being promulgated to address safe patient handling has percolated with urgency in Washington since the early part of the decade -- part of a larger, very contentious labor-industry debate over ergonomics. Safe patient handling is one of those workplace issues that touches down to the core of workers because it involves personal care, such as in nursing in hospitals, nursing homes and home care.

When the American Nurses Association Inc. puts out the talking point that "every day the average nurse lifts 1.8 tons per shift" repeatedly lifting, moving, transferring and repositioning patients, that is a statistic stakeholders can understand. The Silver Spring, MD-based ANA contends that back injuries affect up to 38 percent of all nurses and prompt many of them to leave the profession early thus contributing to a shortage.

But the politics of new regulation – especially one that would demand capital purchases of new, physical equipment such as patient lifts – has caused the issue to emerge in fits and starts.

Conyers, Franken Introduce Bills
Rep. John Conyers, D-MI, introduced the Nurse and Health Care Worker Protection Act of 2009, HR 2381, in the House May 13, and Sen. Al Franken, D-MN, dropped a companion bill, S 1788, in the Senate Oct. 15. It was the third time since 2006 that Conyers has introduced a version of his bill. The other versions languished in committee.

If enacted, compliance would be given over to OSHA, adding another significant duty to an agency already viewed widely as having a full plate of statutes to enforce. The legislation would compel OSHA to issue a rule that would require, among provisions, that facilities employ lift equipment and conduct worker training on safe patient handling.

Ergonomics regulation is nothing new at OSHA. The agency promulgated an ergonomics standard at the end of the Clinton administration, but the Republican-controlled Congress repealed it under the Congressional Review Act shortly after President Bush’s first term began in 2001. The act allows Congress the opportunity to review and overrule new federal regulations. It should be noted that current interim OSHA head Jordan Barab played a key role in developing the repealed standard nearly a decade ago. In March 2003, OSHA issued ergonomics guidelines for the nursing home industry that included safe patient handling, but the guidelines (which were updated in March 2009) do not have the force of regulation.

At a stakeholder meeting in November 2002 to review the draft of the guidelines, the meeting offered the spectacle of seemingly vulnerable and politically insignificant nursing aides, orderlies and attendants complaining on one side about debilitating musculoskeletal injuries while briefcase-carrying industry executives on the other side countered that the science of ergonomics was not firmly established. The draft targeted an array of improvements, but safe patient handling dominated the discussion.

Workers' Comp Savings

Proponents of lift equipment could not seem to sway opponents that day that the costs of implementation would be more than offset through lowered workers’ compensation insurance payments employers make when workers are away from the job. The administrator of a 100-bed Ohio nursing home offered information at the meeting that the facility’s workers’ comp costs had declined from an average of nearly $140,000 per year to less than $4,000 per year with reduced absenteeism and overtime. The administrator had put the cost of buying the equipment at $280,000.

The Franken bill calls for a $200 million grant program to cover the cost of acquiring safe patient handling equipment for cash-strapped facilities, and that may ease some of the financial burden.

The ANA is clear that it is seeking the "elimination of manual patient handling," arguing that 12 percent of nurses leave the profession annually because of back injuries.

The Conyers-Franken legislation would move the narrow issue of safe patient handling beyond the realm of guidelines and represent an opportunity to get something related to ergonomics workplace enforcement on the books. That would be a victory for proponents, who complained that during the Bush years the agency did not vigorously promote the guidelines. That notion is borne out by OSHA’s recent announcement – under the new Democratic-led regime headed by Barab – that it has stepped up ergonomics enforcement at nursing homes as part of its annual Site Specific Targeting program.

One influential group, the American Industrial Hygiene Association, in adopting a position favoring safe patient handling legislation on June 30, recommended that hospitals, nursing homes and other facilities develop written safe patient handling policies or related policies that incorporate necessary elements of a safety and health management system. Policies should address patient handling hazard assessments, task types and frequencies, patient dependency levels, environmental restrictions and enhanced use of mechanical devices among elements, the AIHA said.

Favorable Signs for Action

Proponents believe now is the time to get their way on the issue, pointing to likely support by the Obama administration and significant majorities in the House and Senate. Additionally, one early cosponsor with Conyers, Rep. Lynn Woolsey, D-CA, is chair of the Workforce Protections Subcommittee, part of the House Education and Labor Committee, likely guaranteeing a future congressional hearing. The bill has garnered 11 other cosponsors among Democrats in the House so far, but whether it will push beyond committee with a groundswell of support is uncertain.

Helping proponents’ cause is successful legislation on the state level. Five states, Ohio, Texas, New York, Washington and Rhode Island, have enacted legislation. Nine others have introduced legislation; they are California, Florida, Hawaii, Illinois, Iowa, Massachusetts, Michigan, New Jersey and West Virginia.

But politics still may dog the issue of safe patient handling. While favorable conditions do exist for momentum to drive passage, poor national economic conditions present a dilemma as many facilities are already straining under the weight of the recession and rising health-care costs. A consensus has emerged that technologically feasible solutions that can control ergonomic hazards do exist in the marketplace, but matching that ambition with cost and practicality may present additional hurdles.

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More: Senate safe patient handling legislation, OSHA ergonomics guidelines for nursing homes

Safe Patient Handling images: OSHA, 2003