USW Question/Issues/Concerns with embedded HSS Responses DOE HSS workshop USW Health, Safety & Environment Conference March 7, 2012

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1 USW Question/Issues/Concerns with embedded HSS Responses DOE HSS workshop USW Health, Safety & Environment Conference March 7, Injury Underreporting/Safety Incentive and Disincentive Policies and Practices. OSHA produced a memorandum dated March 12, 2012 regarding Employer Safety Incentive and Disincentive Policies and Practices. Will the DOE produce a comparable policy for DOE sites or support the union with alternative means to address these policies, programs and practices? If so, what is the expected date for its release? 10 CFR 851 requires contractors to ensure that the work-related injuries and illness are recorded and reported accurately. Any activity that discourages accurate reporting is inappropriate. HSS is in agreement with OSHA s memorandum and plans to develop a similar memorandum from HS-1 to the Program and Field Offices. As this memorandum is developed and reviewed, HSS will inform the Focus Groups, including USW on the status of this action. In response to the OSHA policy and the Assistant Secretary of Labor memorandum issued in 2010, DOE is revising the Department's VPP program documents so that the program prohibits contractors from implementing programs that could discourage workers from reporting injuries. Changes to the VPP program documentation will make it clear that any incentive programs offered to employees that disqualify or eliminate workers who have been injured or rewards based on zero injuries must be corrected, and may result either in a 90-day corrective action, a conditional star rating, or a failure to qualify. We are continually encouraging the DOE Line Program offices to find other measures of safety performance than TRC and DART rates. We believe the practice of tying TRC and DART rates to performance awards for the contractors has the potential to encourage underreporting of injuries. We cannot exclude the contractors from VPP as a result of that, but in those situations we look very critically at reporting and how the senior management team insulates the workers from that pressure. Furthermore, HSS, in conjunction with program offices, is undertaking a number of complex-wide activities to instill a strong workplace and organizational safety culture. A critical characteristic of a strong safety culture is workers ability to identify, raise, and report safety issues and concerns without fear of reprisal. HSS believes that a strong organizational safety culture is an effective catalyst to address and overcome injury underreporting and implement meaningful safety incentives/ disincentives policies and practices. 2. Contractors at various sites are rescinding HAZWOPER training and certification requirements for workers including USW members who were previously required to have this training and certification. The USW local unions have repeatedly attempted to address this with contractor site management without success. Does DOE HSS 1

2 agree that such modifications are unacceptable? If so, will the DOE HSS enforce compliance or does it suggest that the union file 851 complaints to address this concern? The Worker Safety and Health Program rule (10 CFR 851) requires DOE contractors to follow the requirements of 29 CFR 1910 and 29 CFR 1926, and HSS follows OSHA direction regarding its regulations as applicable within the Department. All covered DOE contractors are required to follow the 29 CFR (HAZWOPER) requirements, including the training requirements. It should be noted that there is some flexibility in how the specific training elements are accomplished; i.e., tailored and balanced considering the task at hand, including work complexities, hazards characterizations, operating history, worker qualification, and other recognized risks. Regardless; all contractors are required to implement and cover the topics specified in the HAZWOPER standard in sufficient detail and time to meet the intent of the standard. Any contractor not following the HAZWOPER requirements would be in noncompliance with 10 CFR 851. During enforcement investigations involving potential violations of , HSS will evaluate the approach and effectiveness of the methods a contractor is employing to meet the applicable training requirements. 3. Worker involvement is vital to successful health and safety management and is appropriately referenced in DOE Integrated Safety Management (IMS) requirements as well as DOE 851 requirements. Some USW represented DOE workplaces continue a long and difficult struggle to achieve even a modicum of worker involvement in health and safety. The USW local unions continue to try to address these matters at the site level, but find little support or interest from contractors in improving the situation. The prime example for the USW of this concern exists at the WIPP site in Carlsbad, NM. At this site, the union continues to struggle through the bureaucratic process to provide workers with HAZWOPER training. The contractor insists that their New Mexico EPA permit only recognizes the training (Hazardous Waste Worker Training) that they, the contractor, delivers. It must be pointed out that the contractor wrote the permit. The USW is not convinced that the contractor provided Hazardous Waste Worker training meets the requirements of 29 CFR , the contractor obviously agrees because they refuse to issue a certificate of completion, which is required by The USW training is the same training that we deliver at seven other DOE sites and many other non-doe workplaces. This concern also highlights the lack of training portability and reciprocity. DOE HSS indicates that training portability and reciprocity is a priority item for them to implement. What direct assistance will DOE HSS provide to assist the USW in resolving this issue of worker involvement? The Department and HSS recognize the value of worker involvement in achieving a high quality Health and Safety program at the Department's workplaces and have established policy to clearly convey this expectation. In order to address this concern and improve the 2

3 level and types of worker involvement and engagement, HSS has worked with USW and other members of the Focus Group to establish working groups that will address a number of specific concerns to improve worker involvement and engagement across the DOE complex. HSS confirms that 29 CFR (e)(6) requires employees be given a written certificate upon successful completion of training, and failure to meet this requirement would result in a noncompliance with 10 CFR 851, the Department's Worker Safety and Health Program rule. HSS recognizes that the union's HAZWOPER training efforts cover all of the required training elements of 29 CFR However, neither OSHA nor DOE approves or endorses any training program or trainers. The HAZWOPER training requirements are performance oriented to allow contractors the flexibility to develop training that best fits the needs or individual sites. While the standard is performance oriented and allows flexibility, the specific requirements regarding topics to be covered in training and the time spent in training must still be met in order for a contractor to be in compliance with the standard. HSS, in conjunction with the Program Offices, is undertaking efforts to instill a strong workplace and organizational safety culture to ensure and facilitate timely and substantive worker involvement and engagement in the development and implementation of the safety and health program. In parallel, HSS, in collaboration with program offices, has updated its oversight directives, which include providing greater focus and management attention on effectiveness of key performance issues, such as worker engagement. HSS also recommends that USW continues to engage the site managers and safety and health personnel responsible for training in discussions of the value added by using USW developed or jointly developed HAZWOPER training. 4. Contractors at Hanford and Portsmouth are allowing new subcontract employees to perform work that has traditionally been done by experienced, qualified and well trained USW members. In many instances, the sub-contractor workers are not properly trained and do not have needed process and institutional knowledge of the site. This creates health and safety hazards that could potentially lead to catastrophic incidents. What direct assistance will the DOE HSS provide to the USW to properly address this matter? HSS shares your concerns regarding the challenges of ensuring subcontractors performing work at DOE sites appropriately implement Part 851 worker safety and health requirements. This includes 10 CFR , which requires all contractors, including subcontractors, to develop and implement worker safety and health training regarding worker exposure and hazards in order to perform their duties in a safe and healthful manner. HSS, through its policy, assistance, oversight, and enforcement functions, continually reinforces with DOE site offices and prime contractors the need to effectively 3

4 communicate the Department s expectations for performing work safely with fully trained and equipped workers. The DOE occurrence reporting process provides HSS with regular information on the types and locations of issues involving subcontractors, and our enforcement program holds prime contractors and subcontractors accountable for implementing all worker safety and health regulatory requirements. HSS will continue its efforts to monitor this issue, take enforcement action when appropriate, and share lessons learned from our activities across the DOE complex. 5. DOE/EFCOG always has a presence and have representatives on committees where DOE policy making and related programs and implementation are discussed and made. Typically, labor has no representatives on these committees. What means will DOE HSS use to enhance substantially labor representation, participation and input on these committees and all related matters? The Department and EFCOG have a longstanding relationship in which EFCOG has firsthand understanding of the work they are performing and providing the Department with suggestions developed by a number of their subject matter experts. This relationship does not extend into the development of policy or Rules, which is an inherently Federal responsibility. A recent initiative undertaken by the Health and Safety Focus Group is to assure representatives from both the Unions and EFCOG participate in the Focus Group working groups. The Focus Group/work groups have taken on a number of concerns and are developing task matrixes and methods for accomplishing those tasks, and the work group membership now includes representatives from HSS, unions, EFCOG, and HAMMER, as well as NIEHS. In addition to the above, HSS is also encouraging sites that have already obtained VPP status or those that have the aspiration to pursue VPP recognition to further build on their strong labor-management relationship and extend that to partnership to external peer groups and industry task forces focused on strengthening safety and health programs. 6. We continue to have issues at Hanford with Fitness for Duty. We are not able to address these locally with contractors. We anticipate similar issues arising at other sites. At Hanford and Idaho, contractors are using fitness for duty in laying- off employees without regard to seniority. Ordinarily this would not be an issue for HSS, but there is specific language in 851 that addresses fitness for duty. What can HSS do to ensure that workers are treated justly in relation to fitness for duty issues? What can HSS do to ensure that occupational injuries and illnesses suffered while working for DOE contractors are not used by the same or other contractors to lay off or exclude workers using fitness for duty as the rationale? The Worker Safety and Health Program rule (851) addresses fitness for duty in the Occupational Medicine section of 10 CFR 851 Appendix A. The occupational medical 4

5 provider must determine when evaluations are necessary and the content of the evaluations. Two specifics are provided for evaluations to determine fitness for duty : (1) when an individual is first employed or transfer to a new job; and (2) periodically or when required by regulations and standards. This section of the Occupational Medicine section was included to protect the worker and assure that they are physically able to function in a job without causing injury or illness. It has never been the intent, nor does HSS condone any attempt, to use this part of the 851 Rule to lay off workers. HSS will include this topic as part of a group discussion in a future 851 workshop. 7. Workers should be involved in incident and near-miss investigations that fall below levels A and B. Worker involvement must be real and meaningful and should include workers from start to finish. In order for workers to fulfill their duties as investigators they must be trained in the art and skill of interviewing witnesses, gathering information, finding root causes and causal factors, completing a logic tree diagram and timeline, and recommending hierarchal systems fixes to the root causes. In what ways will HSS facilitate contractor engagement of workers and their representatives in all levels of incident and near-miss investigations? In what ways will HSS help to ensure that workers and their representatives involved in incident and near-miss investigations are adequately trained for these roles? During VPP assessments, worker involvement in accident or incident investigations is an expectation. Although not specifically disqualifying, if there is not significant worker involvement, including training of the workers to participate as members of the team beyond being witnesses or union steward representation, the HSS VPP review team will include a recommendation that the contractor train workers (through their Union program, the DOE Accident Investigator training, or other acceptable training and awareness programs). HSS advocates that worker input is an important part of any accident or near-miss investigation. As part of a DOE or contractor-led accident investigation, facts must be determined by interviewing witnesses and other personnel directly associated with the accident. The Secretary and the Deputy Secretary of Energy have reconfirmed that ISM is the framework for safety within the Department of Energy. A positive safety culture, as defined by the ISM Policy, is an integral aspect of an effective ISM system; specifically, the ISM Policy states "...the Department expects all organizations to embrace a strong safety culture where safe performance of work and involvement of workers in all aspects of work performance are core values of managers and workers." The safety culture attributes of Integrated Safety Management provide an expectation for worker involvement and engagement in all aspects of health and safety. Employee/Worker Engagement is one of three focus areas identified in Attachment 10 of the ISM Guide. The following associated attributes were identified under employee/worker engagement: personal commitment to everyone's safety, teamwork and mutual respect, participation in work planning and improvement, and mindful of hazards and controls. 5

6 8. A contractor at the Paducah pays outside vendors to provide HAZMAT Rescue Refresher training in lieu of HAZWOPER training. The contractor claims that this training satisfies the DOE and OSHA HAZWOPER refresher requirements pursuant to 20 CFR An interpretation letter states that OSHA does not allow this. Will DOE interpret this in the same way as OSHA and produce a comparable interpretation letter? If so, what is the expected date for its release? The Worker Safety and Health Program rule requires that DOE contractors follow the requirements of 29 CFR 1910 and 29 CFR Whenever a question arises regarding the intent of a specific requirement contained in either of these rules, HSS first searches the OSHA interpretations to determine if the question or a similar question was addressed. If a relevant interpretation is found, it forms the basis for the HSS technical clarification. It should be noted that these are only technical clarifications and not interpretations of the rule, which can only be undertaken by the Office of the General Counsel. DOE and HSS are committed to employees being provided with the correct training necessary to perform their work in a safe and healthful manner. The specific interpretation letter mentioned above is one of several interpretation letters addressing the training section of 29 CFR Without more detailed information regarding the specific training in question, it is difficult for HSS to definitively respond. 6