Silica Safety Enforcement Delayed for Construction Industry

Cal/OSHA has delayed enforcement of its crystalline silica safety standard for the construction industry for another three months to ensure the California rules are in synch with federal rules on the dangerous airborne matter. The move came after Fed OSHA announced April 6 a delay in adoption of the crystalline silica standard for the sector “to conduct additional outreach and provide educational materials and guidance for employers.”

The silica rules have already been in effect for general industry since 2016 and the delay in enforcement is only for the construction industry. Enforcement for the construction sector was slated to start June 23, but that’s been changed to Sept. 23 under the new order. Under the new silica standard, the permissible exposure limit is 50 micrograms per cubic meter of air, compared to the old standard of 100. The California standard is similar to the federal standard, which the industry is challenging in a federal lawsuit. One outfit, the American Chemistry Council, wrote to the Cal/OSHA standards board that the 50 micrograms level is unnecessary and that the current standard, in place since 1971, has markedly reduced the cases of silicosis.

Industry has complained that the cost of complying with the new standard for employers nationwide will be about $6 billion, although Fed-OSHA says it will cost $371 million for employers to fall in line. The sticking point for the federal construction silica rule is that it requires wet cutting of silica-containing materials to reduce the chances of particles in the air. The California rules allow for wet cutting and dry cutting with vacuum saws that suck in the particles before they escape into the air. Contractors would rather cut dry rather than wet.

Fed-OSHA’s requirements were also scheduled to take effect on June 23, but the agency announced that implementation would be delayed by three months to give industry a chance to provide data showing that dry vacuum cutting is just as safe in reducing crystalline silica dust as wet cutting. While Cal/OSHA’s move only delays enforcement, the silica rule is already on the books and employers should comply with it.

All construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams – including chest X-rays and lung function tests – every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.


If you have not started complying, you should get your new safety protocols in place now. You have an additional three months to do so.


Cal/OSHA Ramping up Inspections: How to Prepare

California businesses can expect more inspections in the coming years as Cal/OSHA ramps up its personnel after its workforce was cut back as a result of the effects of the Great Recession that started in 2008.

In 2015, Cal/OSHA inspections reached the highest level in five years and the number of violations cited was the most since 2008, according to the workplace safety agency. Inspectors were also writing out more serious violations – also the highest since 2008.

As the agency continues to beef up its ranks of inspectors, Cal/OSHA will be able to visit more workplaces in the coming years. So, if you’ve been complacent about workplace safety, now is the time to make a change so that you are not hit with citations if your facilities are inspected.

Cal/OSHA has been working to rebuild its inspection force since it was severely curtailed after the recession took hold in 2008. Since the state economy has been recovering, the agency has started hiring new inspectors in positions that were lost to attrition.

While the numbers are ticking upwards, the number of inspections and resulting fines are nowhere near the amounts from the early 2000s.

Although any worksite can be inspected at random, or as part of a special emphasis program on a certain industry, the majority of inspections are in response to workplace injuries or complaints about unsafe workplaces – mostly by employees.

Construction by far received the most onsite inspections in 2015, at more than 2,500, a third of the total. It was followed by the services industry (more than 1,700) and manufacturing (1,200-plus).

Construction also was on the receiving end of the most citations, at more than 5,500, followed by manufacturing, at almost 4,700, and services at more than 3,800 alleged violations.

Manufacturing had the highest percentage of serious violations, at 26%. The lowest was public administration – at 8%.

While you might feel that your business flies under the radar and it could be 15 or 20 years until you are inspected, the best bet is to play it safe.

Safety and Health magazine recommends taking the following approach to surviving an OSHA inspection:


Establish a response plan

You should have in place an action plan that outlines procedures to follow in case OSHA comes calling.

Start by appointing one of your staff, preferably one involved in safety, to be responsible for escorting the inspector. Have an alternate on staff as well, in case your designee is away from work on inspection day.

You should select a room for opening and closing conferences with the inspector.

Sometimes an employee representative is invited to join these meetings. You can have your safety committee appoint a representative.


Meeting day

To make sure you’re dealing with a bona fide OSHA inspector, ask to see the person’s identification. The ID will include the inspector’s photo, name and office. It will not be a badge.

You should take note of the inspector’s name, phone number and office.


Opening conference

The inspector will ask your designated representative to join him for an opening conference, during which he will explain what prompted the inspection and provide backup documentation.

Next he will explain what he will be inspecting, including details like machinery and procedures. But mind you, if the inspector spies a safety violation that is outside the parameters of the inspection, he may investigate further.

Your point person should know the basic information of the facility, like the types of work being performed, how many employees there are, the names of supervisors and managers, and how to quickly produce injury logs upon request.

If you are prepared, you’re likely to be treated more fairly than if you’re unorganized and have incomplete documentation. If the inspector finds holes in your logs, you can expect that the inspection will be expanded.


During the walkaround

Courteously show the inspector the areas of operation he asks to see and make sure your point person and management act professionally.

Don’t offer to show areas that the inspector hasn’t asked to see.

Feel free to ask the inspector to postpone the inspection if he shows up at an inconvenient time, such as when production is under deadline pressure and it would be difficult to make accommodations. But keep in mind that this would be a short-term solution, and the compliance officer may not agree to the postponement.

Even if the inspector is willing to put off the walkaround, he will still request various files and will want to take a quick look around to observe operations.



Agency Mulls Not Counting Portion of First Aid Claims in X-Mods

California’s workers’ compensation rating agency is developing new guidelines that would exempt a portion of first aid claims from being included in the calculation of employers’ X-Mods.
Under state regulations, employers are required to report injuries that require first aid and are not severe enough for the employee to seek medical treatment or miss work. But despite the rules, few employers report the claims to their insurance companies.
The Workers’ Compensation Insurance Rating Bureau hopes that creating an exemption in the experience rating plan for first aid claims and injuries would increase reporting.
According to the trade press, the Rating Bureau is working on a plan that would exclude a portion of every claim from the X-Mod formula. The amount for that exemption has not been set and it’s likely that the change, even if approved this year, won’t take effect until at least 2017 or 2018.
But regardless, the move would be a welcome development for California employers, many of which are reluctant to notify their insurers of any injuries that involve only first aid treatment for fear that it will affect their X-Mod or because they are confused by the rules. The reporting of first aid claims is typically not mandatory in most other states.
The industries in which the lack of first aid claim reporting is most prevalent are the construction and restaurant industries, but it occurs in other sectors as well, according to the Rating Bureau.
When employers fail to report first aid claims it causes problems for claims adjusters, hinders workers’ ability to access workers’ comp benefits and has a negative impact on the employers that play by the rules and report all of their claims.
Also, what starts as an injury that only requires first aid treatment can later develop into a full-blown claim if the initial injury worsens.
According to the trade publication Workers’ Comp Executive, the Rating Bureau is looking at imposing a first aid claim exemption of $250, $500 or $1,000. It has been testing the different amounts and the effects on ensuring reliability of employers’ X-Mods.

Depending on the amount, it would have a substantial impact on reportable claims:
• The $250 threshold would eliminate 15% of the claims in the system.
• The $500 threshold would eliminate 36%.
• The $1,000 threshold would eliminate 54%.

The biggest concern is that eliminating so many claims could reduce the rating system’s ability to accurately predict system costs and set accurate rates.
The Rating Bureau expects that at the $250 threshold, the change would mostly affect employers who have no other claims and that it would push up their X-Mod by just one percentage point on average.
The committee studying the issue “thought this was a reasonable trade off to get more claims into the system,” David Bellusci, the Rating Bureau’s chief actuary, said during a classification and rating committee meeting in early April, according to the trade publication.
The perception there is that the honest employers reporting all of their claims, including these smaller first aid only claims, are at a disadvantage to employers that are not currently reporting these claims.
Also, the Rating Bureau plans to work Cal/OSHA in regard to changing the definition of first aid. Cal/OSHA regulations do not require that employers report injuries that require first aid to the agency.

Bureau Recommends 12.2% Rate Cut for 2016

California’s workers’ compensation statistical agency will recommend that benchmark rates be reduced by an average of 12.2% for policies incepting at the start of next year.
The rate filing is actually for a 0.8% reduction, but that comes after benchmark rates were cut 10.2% on July 1, so that’s why the average rate reduction for January policies is higher.
The Workers’ Compensation Insurance Rating Bureau will file the recommendation with the state insurance commissioner, who has the final word on rates in California. He can either choose to approve or reject the rate, and if he does the latter he can set the rate himself on the advice of Insurance Department actuaries.
And this time he may actually go against the filing, because the employer and labor members of the Bureau’s Governing Committee recommended a rate reduction of 6% from July 1 levels, which would have translated into an 18% reduction for policies incepting on or after Jan. 1, 2016.
The filing will propose benchmark rates that average $2.45 per $100 of payroll, but that is an average across all industries and the rate change will vary from sector to sector depending on overall claims costs trends.
Also, whatever the benchmark rate is set at, insurers can still price their policies as they see fit. They use the benchmark rate as a guide for setting their own rates depending on their own experience.
The reason for the rate reduction is that the reforms that were ushered in by legislation in 2013 have proven to be more effective than originally anticipated, according to the Bureau’s chief actuary, Dave Bellusci.
Bellusci identified some of the factors contributing to the reduced indicated pure premium rate:
• Medical costs for injured workers continue to fall.
• Costs for claims that involve payment of indemnity (wage replacement) benefits and medical treatment are not increasing as rapidly as expected.
• A move to a new pricing schedule (called the Resource Based Relative Value Scale) has resulted in higher than anticipated costs savings.
• Increases in projected wage growth in California due to economic expansion.

These positive developments, however, were somewhat offset by one trend in particular: insurers’ costs of adjusting claims continue to rise due to increased compliance requirements.
The average charged rate for employers in California has slowly been edging upwards since hitting a low of $2.10 per $100 of payroll in 2009. Since then, the final rates employers are charged on their policies have slowly crept up – and they hit $3.07 in January.
With this upcoming rate filing, there is hope that the rates most employers pay in the state will come down.

Average Insurer Filed Rates per $100 of Payroll

Transportation and utilities $14.28
Construction $12.95
Agriculture and mining $10.96
Administrative & other services $9.71
Wholesale & retail $8.15
Hospitality & entertainment $8.03
Manufacturing $6.95
Education and health $3.83
Finance and real estate $2.53
Information & professional $0.99
Clerical and outside sales $0.84