Protecting Employees During AND After Winter Storms

Our Portland, Maine office NEVER closes, so when I saw the internal announcement  that even that stolid crew was fleeing the storm, I knew it was bad.

I am traveling on business through Sunday and do not have the opportunity for much creative Blogging, so I have pasted below the substance of a Fisher & Phillips 2010 Labor Alert I prepared about protecting employees after the storm.  I have updated the links and hope that it is helpful.  See also OSHA’s fine Winter Storms page.  The page has a list of hazards to review… assuming of course that you have power.

Before the power goes out, check OSHA’s Cold Stress page describing signs of hypothermia and frostbite and how to avoid this serious condition.  Please see the movie, Christmas Story for guidance on the dangers of touching your tongue to a frozen flag pole.  The CDC guide to surviving harsh weather is also useful.  Finally, as you huddle in warmth due to your generator, while your neighbors freeze, be wary of carbon monoxide.

Once the snow melts and your clean-up involves flood like conditions, see OSHA’s discussions on responding to natural disasters.

The Storm Cometh

In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.

Falls— read OSHA’s Alert on Cleaning Snow from Roofs.  Employers with flat roofs may send contractors or employees on their flat roof to remove accumulated snow before the roof collapses. Unfortunately, this may be a non-routine task for employees, and they may not be aware of applicable fall protection requirements, which are even more important during and after winter storms. In addition, many buildings have skylights whose covers will not meet OSHA’s requirements or they lack guard rails, and employees often fall through these skylights as they unknowingly step on the covers buried under snow. Also, do not neglect OSHA requirements for ladder safety, and the use of man lifts, scissor lifts and buckets.

Electrocutions–we all appreciate the diligent service of the utilities and contractors who labor around the clock to repair fallen lines and downed poles and transformers. However, those contractors must still adhere to the detailed OSHA requirements for electric distribution and construction, as well as ensure that adequate employees accompany each truck. Now is not the time to send out inadequately trained employees, cut corners on briefings and instructions, or neglect training for non-routine tasks. Generator use presents special issues, as does electric backfeed.

Personal Protection Equipment (PPE)–even in emergency situations, employees must perform a Job Safety Analysis (JSA) to evaluate the PPE needed and train employees accordingly. This evaluation and training must be documented (certified) as set out in 1910.132(d). Be aware of what PPE must be provided at no cost to  employees. Under OSHA regulations, employers are required to pay for most personal protective equipment (PPE), but ordinary clothing, skin creams or other items, used solely for protection from the weather (i.e., winter coats, jackets, gloves, , rubber boots, hats, rain coats) are not required to be paid for by the employer. On a practical level, do not overlook footwear; a special focus of OSHA.

Hazard Communication–employers must ensure that employees are adequately trained before exposing them to new chemical hazards, and should ensure that they provide training and necessary PPE for using de-icers and other chemicals.

Equipment Operation–employees must be evaluated and trained to operate most powered equipment, and this duty generally includes when previously trained employees are assigned to new or different equipment. This process can be done simply and efficiently in emergency situations, but may not be neglected. Be especially careful in assigning employees to use chain saws, chippers and comparable equipment.

Roadside Protection/Struck-by’s–not only road construction workers but all workers who may work or operate vehicles on roadsides or construction sites have increasingly faced hazards from being struck by automobiles or run over by dump trucks or equipment whose blind spots prevented the operators from seeing the worker. Employers must be aware of OSHA’s different requirements for telecommunications workers, electric distribution, and general construction for warnings, as well as requirements under 1926.20 and 21 to evaluate a site and determine means to avoid hazards. Employers operating bucket trucks, vans, and even delivery vehicles should ensure they have prepared for roadside hazards.

Exhaustion and Other Health-Related Issues–tired employees make bad judgments and are the first to be injured. Even in an emergency situation, monitor your employees for exhaustion, stress, exposure and other physical problems, including existing physical conditions exacerbated by unusual exertions. Frostbite occurs when skin tissue actually freezes. It normally occurs when the temperature is below 30° Fbut wind chill effect can result in frostbite occurring above freezing. Hypothermia occurs when body temperature falls to a level where normal muscular and cerebral functions are impaired. Trench foot is caused by long, continuous exposure to a wet, cold environment or actual immersion in water. Ensure the use of layers of warm clothing and gear, water, hot beverages and food, and frequent breaks. See OSHA’s cold weather instructions .

Federal Motor Carrier Safety Concerns–if drivers may have to exceed hours worked limitations either to handle the snow fall or to pick up trash, deliver fuel, or undertake other necessary work, you must seek the proper local, state, or federal exemption.

Wage-Hour and Independent Contractor Considerations–while not strictly a safety issue, ensure that even during an emergency and when electronic timekeeping systems may be unavailable, that employees, including those working from home or unusual places, record and are paid for all hours worked, including overtime if so required. Ensure that temporary employees are properly classified and paid, as well as trained.

Much of this is common sense; however, winter storms, and catastrophic events such as  Super Storm Sandy, Hurricane Katrina show the necessity of developing plans in advance which contemplate far more than fire and evacuations. Clean up may well be the most dangerous stage.

If you need help with any question on OSHA’s requirement for providing your employees with the appropriate personal protective equipment (PPE) or what PPE OSHA requires employers to pay for, please contact the Fisher & Phillips Workplace Safety and Catastrophe Management Practice Group.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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