Copyright

(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Thursday, December 8, 2011

US Department of Labor continues to cite beauty salons and manufacturers for formaldehyde exposure from hair smoothing products

OSHA urges salon owners to implement protective measures
The U.S. Department of Labor's Occupational Safety and Health Administration is continuing its efforts to protect workers from the dangers of formaldehyde exposure.

In November, OSHA issued citations and fines to two salons for failing to implement precautions to protect workers from exposure to formaldehyde when using certain hair-smoothing products. Formaldehyde can irritate the eyes and nose; can cause allergic reactions of the skin, eyes and lungs; and is a cancer hazard. Salon owners who decide to use products that may contain or release formaldehyde must follow the requirements of OSHA's formaldehyde and hazard communication standards to keep workers safe.

"We want to make sure that salon owners are aware that if they use these products, they have to implement protective measures such as air monitoring and training," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "What is very troubling to the agency is that some of these products clearly expose workers to formaldehyde even when the label states they are ‘formaldehyde free.'"

OSHA continues to respond to complaints and referrals of formaldehyde exposure in salons, beauty schools and manufacturing facilities. To date in calendar year 2011, federal OSHA has issued citations to 23 salon owners and beauty schools in Connecticut, Massachusetts, Pennsylvania, Florida, Illinois, New York, New Jersey and Ohio, with fines ranging up to $17,500 for failing to protect workers from overexposure and potential exposure to formaldehyde.

Some of these violations include failing to communicate the hazards of exposure to formaldehyde, provide needed protective equipment and test air levels. The requirements of OSHA's formaldehyde standard can be viewed at http://s.dol.gov/KW. In three separate salons, OSHA's tests showed that workers were exposed to formaldehyde levels above the agency's 15-minute short-term exposure limit, which is 2.0 parts of formaldehyde per million parts of air. In one case, OSHA determined that a hair stylist was exposed to more than five times the allowable amount with an actual exposure reading of 10.12 ppm. In another instance, the exposure reading was 4.73 ppm.

OSHA also has issued citations to two Florida manufacturers and two Florida-based distributors of hair products containing formaldehyde for failing to protect their own workers from possible formaldehyde exposure as well as to communicate the hazards of formaldehyde exposure to salons, stylists and consumers. The violations of OSHA's formaldehyde and hazard communication standards include failing to list formaldehyde as a hazardous ingredient on the material safety data sheet, the hazard warning sheet provided to users such as salon owners and stylists; include proper hazard warnings on product labels; and list the health effects of formaldehyde exposure on the MSDS. Labels must include ingredient and health hazard warning information, and the MSDS must provide users with information on the chemicals in a product, the hazards to workers and how to use the product safely.

"The best way to control exposure to formaldehyde is to use products that do not contain formaldehyde. Salons should check the label or product information to make sure it does not list formaldehyde, formalin, methylene glycol or any of the other names for formaldehyde," said Michaels. "If salon owners decide to use products that contain or release formaldehyde, then they must follow a number of protective practices — including air monitoring, worker training and, if levels are over OSHA limits, good ventilation or respirators."

OSHA already has conducted significant outreach to salons, beauty schools and manufacturers to alert them about the hazards of hair smoothing products and the requirements of OSHA's standards. In late September, OSHA issued a second hazard alert to hair salon owners and workers about potential formaldehyde exposure from working with certain hair smoothing and straightening products, which can be viewed at http://www.osha.gov/SLTC/formaldehyde/hazard_alert.html. This alert, which revised the initial alert issued last spring, was prompted by the results of additional agency inspections, a warning letter issued by the U.S. Food and Drug Administration, and factually incorrect information recently sent to salons by Brazilian Blowout, a company that manufactures hair products.

In response to the Aug. 24 letter sent by Brazilian Blowout to salon owners claiming that all OSHA air tests performed on the company's Brazilian Blowout Professional Acai Smoothing Solution yielded results below OSHA's standard for exposure, the agency sent a letter to the company refuting that assertion. OSHA's letter can be viewed at http://www.osha.gov/SLTC/formaldehyde/brazilian_blowout_letter.pdf*.

For more information on formaldehyde exposure in salons, visit http://www.osha.gov/SLTC/hairsalons/index.html.

For small businesses in all states across the country, OSHA's On-site Consultation Program offers free and confidential advice for employers seeking help to identify and prevent job hazards or improve their safety and health management systems. In fiscal year 2010, the program provided free assistance to more than 30,000 small businesses covering more than 1.5 million workers across the nation. For more information, visit http://www.osha.gov/dcsp/smallbusiness/consult.html.

"These consultation services are separate from enforcement and do not result in penalties or citations," said Michaels. "Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing safety and health management systems."

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.


The Workers' Compensation Medicare Set-aside Portal (WCMSAP)

The Workers' Compensation Medicare Set-aside Portal (WCMSAP) application has gone "live" and is now available for users. Prior to attempting to register, you should read the New Registration section of the User guide. The URL for the WCMSAP may be found under the "Related Links Outside CMS," on the WCMSAP section page. The WCMSAP User Guide may be found in the "Reference Material" section of the WCMSAP application.

Instructions on how to register for the Computer Based Training (CBTs) may be found in the "Workers' Compensation Medicare Set-aside Portal (WCMSAP) Computer Based Training (CBT) document under the "Downloads Links" on the WCMSAP section page (click the "How to Register for WCMSAP Computer Based Training (CBT) Modules hyperlink.") These courses are designed to assist submitters of Workers' Compensation Medicare Set-Aside Arrangements (WCMSAs) with the registration and use of the WCMSAP.


This site provides an interface for entry of Workers' Compensation Medicare Set-Aside Arrangements (WCMSA) proposals. Attorneys, Medicare beneficiaries, claimants, insurance carriers and WCMSA vendors may use this site to enter the case information directly. The site also provides attorneys, Medicare beneficiaries, claimants, insurance carriers, and WCMSA vendors with the ability to track their submitted cases and the statuses without inquiry to the Coordination of Benefits Contractor (COBC) or the Centers for Medicare & Medicaid Services (CMS).

Wednesday, December 7, 2011

It is Time To Do The Right Thing



A recent decision by the NJ Courts illustrates the weaknesses of the present workers' compensation system when dealing with occupational exposures. The social remedial system called workers' compensation was designed before recognition of the compensability occupational illnesses. 


The initial system was to furnish benefits without fault and in a summary and remedial fashion to injured workers. For the most part, that system worked from 1911 until the 1950's when the legacy of asbestos, used in World War II to insulate ships, came back to haunt the American worker by the manifestation of latent asbestos diseases including mesothelioma, a rare and fatal cancer.


Recently a NJ court denied the compensability of an asbestos related condition based upon the claimant's own knowledge of the causal relationship of an asbestos related medical condition and his own occupational exposure. Additional the court held that medical expert testimony was not required to support a motion to dismiss for the failure to meet the requirement of the statute of limitations.


In the 1970's the US Department of Labor was concerned with the same weaknesses and unavailability of benefits. The US DOL commissioned the Environmental Sciences Center at the Mt. Sinai School of Medicine under the leadership of the late Irving J. Selikoff, MD to study and analyze the problem. The weaknesses of the system, even though less dramatic than present, led to the conclusion that the workers' compensation systems just didn't work for occupational disease conditions. Additionally, costs for medical treatment of asbestos related conditions were being shifted at an estimated $10 Billion dollars, at that time, to the Medicare system.


Dr. Selikoff studied two major cohorts in analyzing the inadequacies of the  workers' compensation system. One group were insulators, and another group were 933 former plant workers at The Union Asbestos and Rubber Company of Paterson NJ who worked in war production between 1942 and 1944. Strikingly, the dormant medical conditions caused by the occupational exposure to asbestos fiber, and the latent condition of the disease for decades, caused major problems in filing claims. Those included the statute of limitation and diagnosis by medical professionals. Some professional were Grade B readers certified by The National Institute of Occupational Safety and Health (NIOSH) and even those experts in the field were challenged in Court. 


The report, that was submitted to the US Congress, concluded that the failure of the workers' compensation system to provide benefits to many who were exposed to asbestos, and the inadequate benefits to others. Their low rates were based on extremely low wages at the time of exposure. For these and other reasons, the report concluded, that the workers' compensation had failed to adequately provide treatment and other benefits. Since workers' compensation was not meeting the needs, claimants flocked to the tort system in epidemic proportion resulting in "the longest running tort" in American judicial history, "asbestos litigation." That litigation continues to this day. Even scores of companies that have reorganized under bankruptcy to avoid liability exposure are now providing benefits under a claims procedure.


While the NJ Court's decision may have been on point with regard to the Rules adopted to govern workers' compensation cases, it is time to revisit whether the Rules are too strict and defeat the social and remedial goals of the system that was envisioned by the creators in 1911. On a global scale, the failure of the workers' compensation to provide benefits results in the inequitable shift of responsibility to the general taxpayer. 


To meet the needs of those exposed occupationally, Congress needs to act now upon a global and unified solution. One path to the goal of correcting inequities of the system is to advance a system of universal medical care.  The US government must do the right thing. The medical delivery system for occupational diseases must come under a national universal medical care program. Additionally Congress must meet its moral and social responsibility and finally ban asbestos use in the US once and for all.


Read the decision: Russo v. Hoboken Board of Education, A-1861-10T4 (App. Div. November 29, 2011)

"...the WCJ found that he knew asbestos could cause lung disease and other medical problems as early as "the 70s." She noted that Russo "made complaints about the exposures to harmful substances . . . while still teaching." The WCJ further found that Russo "was well aware of the potential harmful effects of asbestos exposure," and she rejected his claim that the petition was not time-barred "because he was never informed by any of his treating physicians that his cancer was related to this exposure."

...
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Gingrich: Workers' Compensation is History

The NY Times reports today that presidential hopeful, Newt Gingrich is taking the lead in the Iowa state Caucus poles. Over the past years, during his absence from Washington politics, Gingrich has been involved in lobbying for change in the nation's medical delivery system. 

His statement before the National Governor's Conference in 2010 reflects that he will definitely advocate for the abolishment of the patchwork of State workers' compensation laws:

"Replace litigation-focused workers compensation with a rehabilitation and capabilities focused program that maximizes the speed of helping people medically, and focuses on retraining and focusing on what they can do rather than on what they can't do."


Read more about his increase in popularity:
In Iowa, Gingrich Is Gaining Favor, New Poll Shows
"Newt Gingrich enters the final four weeks of campaigning before the Iowa caucuses with Republican voters in the state viewing him as more prepared to be president than Mitt Romney, more attuned to their concerns and just as capable of defeating President Obama, according to the latest New York Times/CBS News Poll." read more.......

Tuesday, December 6, 2011

US Labor Department's MSHA cites corporate culture as root cause of Upper Big Branch Mine disaster

Solicitor of Labor M. Patricia Smith
Massey issued 369 citations and orders with $10.8 million in civil penalties
ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today announced that it has imposed a fine of $10,825,368, the largest in agency history, following its investigation into the April 2010 explosion at the Upper Big Branch-South Mine, which was operated by Performance Coal Co., a subsidiary of Massey Energy Co. The investigation followed an explosion that killed 29 miners and injured two of the worst U.S. coal mining disaster in 40 years. A report concludes that Massey's corporate culture was the root cause of the tragedy. MSHA has issued Massey and PCC 369 citations and orders, including for an unprecedented 21 flagrant violations, which carry the most serious civil penalties available under the law.
Secretary of Labor Hilda L. Solis, Solicitor of Labor M. Patricia Smith, MSHA Assistant Secretary Joseph A. Main and MSHA Administrator for Coal Kevin Stricklin met with families today to share the agency's findings.
"The tragic explosion at Upper Big Branch left dozens of families without husbands, fathers, brothers and sons," said Secretary Solis. "I made a pledge to the families of those we lost, and the entire mining community, to conduct the most complete and thorough investigation possible in order to find the cause of this disaster. The results of the investigation lead to the conclusion that PCC/Massey promoted and enforced a workplace culture that valued production over safety, and broke the law as they endangered the lives of their miners. By issuing the largest fine in MSHA's history, I hope to send a strong message that the safety of miners must come first."
The agency's presentation of findings follows a non-prosecution agreement reached today among the U.S. Attorney's Office for the Southern District of West Virginia, the U.S. Department of Justice, Alpha Natural Resources Inc. and Alpha Appalachia Holdings Inc., formerly known as Massey Energy Co. The agreement — which includes nearly $210 million for remedial safety measures at all Alpha mines, a trust fund for improvements in mine safety and health, payment of outstanding civil penalties for all former Massey mines and restitution payments for the victims' families — resolves criminal liability for Alpha but does not provide protection against criminal prosecution of any individuals.
"This agreement can go a long way toward changing a safety culture that was clearly broken at Massey's mines," said Secretary Solis. "Although this agreement is significant, it in no way absolves any individuals responsible for this terrible tragedy of their criminal liability. We will continue to cooperate with the U.S. Attorney's Office to ensure that the responsible parties will be brought to justice."
MSHA concluded that the 29 miners died in a massive coal dust explosion that started as a methane ignition. While the investigation found the physical conditions that led to the coal dust explosion were the result of a series of basic safety violations at UBB, which PCC and Massey disregarded, the report cites unlawful policies and practices implemented by PCC and Massey as the root cause of the explosion: including the intimidation of miners, advance notice of inspections, and two sets of books with hazards recorded in UBB's internal production and maintenance book but not in the official examination book. The investigation found that the operator promoted and enforced a workplace culture that valued production over safety, including practices calculated to allow it to conduct mining operations in violation of the law.
"Every time Massey sent miners into the UBB Mine, Massey put those miners' lives at risk. Massey management created a culture of fear and intimidation in their miners to hide their reckless practices. Today's report brings to light the tragic consequences of a corporate culture that values production over people," said Main. "The secretary and I are committed to improving the health and safety of America's miners. To honor the memory of the lives lost at UBB, we will use the lessons learned from this terrible tragedy to fulfill that commitment."
MSHA issued PCC and Massey 12 citations and orders deemed contributory to the cause of the accident, and nine of those violations were assessed as flagrant, which carry the highest possible penalties. Violations include illegally providing advance notice to miners of MSHA inspections; failing to properly conduct required examinations; allowing hazardous levels of loose coal, coal dust and float coal dust to accumulate; failing to adequately apply rock dust to the mine; failing to adequately train miners; and failing to comply with approved ventilation plans and approved roof control plans. MSHA also issued 357 citations and orders to PCC and Massey that did not contribute directly to the explosion, including 11 assessed as flagrant. Additionally, MSHA issued two contributory and two non-contributory violations to David Stanley Consulting LLC — a contractor that supplied examiners and other miners to work at UBB — for its examiner's failure to properly conduct examinations. These violations carry penalties of $142,684.
MSHA conducted its investigation under the authority of the Federal Mine Safety and Health Act of 1977, which requires that authorized representatives of the secretary of labor carry out investigations in mines for the purpose of obtaining, utilizing and disseminating information relating to the causes of the accidents.
MSHA conducted the underground investigation in coordination with the West Virginia Office of Miners' Health Safety and Training, the Governor's Independent Investigative Panel and Massey Energy. The United Mine Workers of America participated in the investigation in its capacity as a representative of miners designated pursuant to the Mine Act, as did Moreland & Moreland l.c.
The accident investigation report, along with supplementary documents, is available on the agency's UBB single source page at http://www.msha.gov/PerformanceCoal/PerformanceCoal.asp.

Monday, December 5, 2011

US Labor Department, Colorado Department of Labor and Employment sign agreement to reduce misclassification of employees as independent contractors

Nancy J. Leppink, deputy administrator of the U.S. Department of Labor's Wage and Hour Division, and Ellen Golombek, executive director of the Colorado Department of Labor and Employment, signed a memorandum of understanding Dec. 5 regarding the improper classification of employees as independent contractors. Following the signing, Leppink and Golombek hosted a press teleconference during which they discussed how the U.S. Department of Labor and the Colorado Department of Labor and Employment will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees. This partnership is the 11th of its kind for the U.S. Department of Labor.
"This memorandum of understanding helps us send a message: We're standing united to end the practice of misclassifying employees," said Leppink. "This is an important step toward making sure that the American dream is still available for employees and responsible employers alike."
"Misclassification costs everyone," said Golombek. "It destabilizes the business climate by creating an unlevel playing field and causing responsible businesses to suffer unfair competition. The efforts we will be launching with the U.S. Department of Labor will promote accountability that Colorado employers and employees will welcome."
Employee misclassification is a growing problem. In 2010, the Wage and Hour Division collected nearly $4 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act that resulted from employees being misclassified as independent contractors or otherwise not treated as employees.
Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor law. The misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.
Memorandums of understanding with state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the U.S. Department of Labor's misclassification Web page at http://www.dol.gov/misclassification.

NJ Bill Passes Assembly to Increase Awards for Hand and Feet Injuries

NJ Bill Passes Assembly to Increase Awards for Hand and Feet Injuries
The bill has been sent to Gov. Christie for signature.

NJ is one of the few state that does not follow the AMA Guidelines in determining disability. Disability is scheduled and based on complaints, functional loss and evaluation by the hearing official.


Identical Bill Number: S676    
Last Session Bill Number: S639   (1R) A1581 

     This bill increases the amount of workers' compensation paid in certain cases for the loss of a hand, or thumb and first and second fingers (on one hand) or four fingers (on one hand) or a foot, as follows:
     1.    If a loss of function of a hand is determined to be a 25% or more loss of use, the award of workers’ compensation shall be calculated based on a maximum of 300 weeks of compensation for a 100% loss of function; and
     2.    If a loss of function of a foot is determined to be a 25% or more loss of use, the award of workers’ compensation shall be calculated based on a maximum of 275 weeks of compensation for a 100% loss of function.
     Under current law, the maximum award for the loss of a hand is 245 weeks and the maximum award for the loss of a foot is 230 weeks.
Egan, Joseph V.   as Primary Sponsor
Evans, Elease   as Primary Sponsor
Wisniewski, John S.   as Primary Sponsor
Giblin, Thomas P.   as Primary Sponsor
Spencer, L. Grace   as Co-Sponsor
 
   

9/16/2010 Introduced, Referred to Assembly Labor Committee
11/28/2011 Reported out of Assembly Committee, 2nd Reading
12/5/2011 Substituted by S676

Statement - ALA 11/28/11 - 2 pages PDF Format    HTML Format 
Fiscal Estimate - 12/5/11; as introduced - 3 pages PDF Format    HTML Format 
Introduced - 9 pages PDF Format    HTML Format 

Committee Voting:
ALA  11/28/2011  -  r/favorably  -  Yes {6}  No {2}  Not Voting {0}  Abstains {1}  -  Roll Call

The legislation was previously approved by the NJ Senate.
Identical Bill Number: A3166    
Last Session Bill Number: S639   (1R) A1581 

Sarlo, Paul A.   as Primary Sponsor
Gill, Nia H., Esq.   as Primary Sponsor
Egan, Joseph V.   as Primary Sponsor
Evans, Elease   as Primary Sponsor
Wisniewski, John S.   as Primary Sponsor
Giblin, Thomas P.   as Primary Sponsor
Scutari, Nicholas P.   as Co-Sponsor
Spencer, L. Grace   as Co-Sponsor
 
   

1/12/2010 Introduced in the Senate, Referred to Senate Labor Committee
2/18/2010 Reported from Senate Committee, 2nd Reading
2/22/2010 Passed by the Senate (24-12)
2/25/2010 Received in the Assembly, Referred to Assembly Labor Committee
11/28/2011 Reported out of Assembly Committee, 2nd Reading
12/5/2011 Substituted for A3166
12/5/2011 Passed Assembly (Passed Both Houses) (59-15-4)

Introduced - 9 pages PDF Format    HTML Format 
Technical Review Of Prefiled Bill - 8 pages PDF Format    HTML Format 
Statement - SLA 2/18/10 - 1 pages PDF Format    HTML Format 
Fiscal Estimate - 3/1/10; as introduced - 2 pages PDF Format    HTML Format 
Statement - ALA 11/28/11 - 2 pages PDF Format    HTML Format 

Committee Voting:
SLA  2/18/2010  -  r/favorably  -  Yes {4}  No {2}  Not Voting {0}  Abstains {0}  -  Roll Call
ALA  11/28/2011  -  r/favorably  -  Yes {6}  No {2}  Not Voting {0}  Abstains {1}  -  Roll Call

Session Voting:
Sen.    2/22/2010  -  3RDG FINAL PASSAGE   -  Yes {24}  No {12}  Not Voting {4}    -  Roll Call