Oregon Bulletin
Rule
Caption: Adopt changes to Division 1,
General Administrative Rules.
Adm.
Order No.: OSHA 2-2011
Filed with Sec. of
State: 9-29-2011
Certified to be
Effective: 10-1-11
Notice Publication
Date: 8-1-2011
Rules Amended: 437-001-0057, 437-001-0706
Subject: This rulemaking makes relatively minor adjustments to
the scheduling rule changes adopted in September of 2009. First, the existing
rule establishes the size of each tier based on outdated data from the workers
compensation system. The department can now develop more reliable estimates of
size for most industries using data from the Employment Department. Second,
this rule improves the ranking of industries by employing a more sophisticated
statistical technique. Additionally, the rule replaces the industry tiers with
the criteria that will be used to develop those tiers now and in the future.
This rulemaking
also amends OAR 437-001-0706 Recordkeeping for Health Care Assaults, to remove
the reporting requirement. This requirement has been satisfied and no longer
needs to be included in the rule.
Please visit our
website: www.orosha.org
Click ‘Rules/Compliance’
in the left vertical column and view our proposed, adopted, and final rules.
Rules Coordinator: Sue C. Joye—(503) 947-7449
437-001-0057
Scheduling Inspections
The following rules are intended to predominantly focus
enforcement activities on the places of employment that the director reasonably
believes to be the most unsafe.
(1) The Division will schedule programmed inspections
according to a priority system based on written neutral administrative
standards.
(2) The Division will identify the most hazardous
industries and places of employment through information obtained from the
Department of Consumer and Business Services claim and employer files, the
Bureau of Labor Statistics Occupational Injury and Illness Survey, the Bureau
of Labor Statistics Census of Fatal Occupational Injuries, the Oregon
Employment Department, and knowledge of recognized safety and health hazards
associated with certain processes. Health hazards include carcinogens, lead,
silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive
liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents,
harmful physical stress agents, and biological agents.
(3) Scheduling lists will be provided by the Division
to its field offices, at least annually.
Note: An employer will be exempt from a programmed inspection of a
fixed site from seven days prior to the scheduled date of an Oregon OSHA
consultation to 60 days after receipt of the written consultation report.
An employer will be exempt from a
programmed inspection of a construction, forest activities or Agriculture Labor
Housing site from seven days prior to the scheduled date of an Oregon OSHA
consultation to 30 days after receipt of the written consultation report.
(4) Scheduling Safety Inspections for Fixed Places of
Employment.
(a) The scheduling lists are compiled, using an
electronic scheduling system, for safety enforcement managers to schedule
inspections at fixed places of employment for each compliance officer. Written
neutral administrative standards (the seven criteria listed below) are
standardized using a statistical weighting method involving t-scores. These
weighted scores are averaged across the seven criteria to create a composite
score. This composite score is used to determine the position of each industry
(using the 4-digit NAICS code) on the list from most to least hazardous. Table
not included. See Ed. Note. Lists are divided into 10 tiers. Places of
employment are randomly selected for inspection within each tier using the
following percentages whenever a list is generated. The percentages will not be
affected by the places of employment excluded in (4)(b) unless the number of
exclusions makes it impossible to meet the target percentage. When that occurs,
all remaining eligible places of employment will be selected. The scheduling
lists will be sorted by field office.
(A) 30 percent of places of employment under the NAICS
identified as Tier A.
(B) 25 percent of places of employment under the NAICS
identified as Tier B.
(C) 20 percent of places of employment under the NAICS
identified as Tier C.
(D) 15 percent of places of employment under the NAICS
identified as Tier D.
(E) 12.5 percent of places of employment under the
NAICS identified as Tier E.
(F) 10 percent of places of employment under the NAICS
identified as Tier F.
(G) 7.5 percent of places of employment under the NAICS
identified as Tier G.
(H) 5 percent of places of employment under the NAICS
identified as Tier H.
(I) 2.5 percent of places of employment under the NAICS
identified as Tier I.
(J) No more than 0.05 percent of places of employment
under the NAICS not otherwise identified in Tiers A through I.
(b) Places of employment will be exempt from programmed
inspections if any of the following conditions apply:
(A) A location has received a comprehensive safety
inspection within the previous 36 months.
(B) A location has received Voluntary Protection
Program (VPP) status.
(C) A location is in its second year, or later, of the
Safety and Health Achievement Recognition Program (SHARP).
(D) A location has graduated from the Safety and Health
Achievement Recognition Program (SHARP). Locations are exempt from inspection
for 36 months after graduation.
(E) A location has received two consecutive
comprehensive safety inspections with no serious, willful, or egregious
violations, and with no inspections of any type resulting in serious, willful,
or egregious violations since the date of the first of the two consecutive
comprehensive inspections.
(F) A location has received certification as meeting
the British Standards Institute’s OHSAS 18001 standards (Occupational Health
and Safety Management Systems). Evidence of certification must be provided
before the start of an inspection.
(G) A location has a MOD rate of 0.50 and they provide
evidence to that effect before the start of an inspection.
(c) The field office managers will provide each
compliance officer a list of inspections that are assigned in descending order
from tiers A through J. The compliance officer will make a reasonable effort to
inspect each place of employment on that list prior to receiving another list;
however, failure to inspect all places of employment on a list will not
invalidate subsequent inspections. The compliance officer’s list will generally
be followed in descending order but may be inspected in any order to use the
compliance officer’s time efficiently.
(5) Scheduling Safety Inspections for Construction and
Forest Activities.
(a) Construction and forest activities scheduling lists
will be used by safety enforcement managers and compliance staff to focus
enforcement efforts on employers with the most hazardous places of employment.
Employers will be selected and placed on one of two lists based on the
following criteria:
(A) Construction List – The following written
neutral administrative standards will be used to select and rank employers on
this list. Construction employers that have one or more accepted disabling
claims in the first 12 of the previous 18 months and are ranked in the top 500
construction employers. The employers on this list will be ranked statewide
using violation history, weighted claims rate, and weighted claims count as
described in subsection (b) of this section. The 500 employers with the most points
will be placed on a list.
(B) Forest Activities List – The following
written neutral administrative standards will be used to select and rank
employers on this list. Forest activities employers that have one or more
accepted disabling claims in the first 12 of the previous 18 months and are
ranked in the top 50 forest activities employers. The employers on this list
will be ranked statewide using violation history, weighted claims rate, and
weighted claims count as described in subsection (b) of this section. The 50
employers with the most points will be placed on a list.
(b) Ranking Factors: Construction and forest activities
employers are ranked using violation history, weighted claims rate, and
weighted claims count. The rankings from each factor are combined to produce a
score for each employer, and the employers are ranked based on their score. The
top 500 construction employers will be on one list and the top 50 forest
activities employers will be on another list:
(A) Violation History: Employers with a violation
history will be assigned points for each violation on citations that have
become a final order within the previous 36 months. Willful violations are
assigned five points, failure to abate violations four points, repeat
violations three points, serious violations two points, and other-than-serious
violations one point. Average points per citation will be determined with the
employer having the most points receiving a ranking of one followed by the
employer with the next highest points receiving a ranking of two, etc.
Employers not inspected within 36 months are given a ranking of zero, that will
put them at the top of this category.
(B) Weighted Claims Count: Selected claims from the
first 12 of the previous 18 months are assigned points based on the seriousness
of the claim. These points are totaled for each employer. Employers are ranked
on the total points with the employer having the most points receiving a rank
of one, followed by the second highest weighted claims count receiving a ranking
of two, etc.
(C) Weighted Claims Rate: Employers are ranked in this
category with the highest weighted claims rate receiving a ranking of one,
followed by the second highest weighted claims rate receiving a ranking of two,
etc. The weighted claims count described in (B) above is used to determine the
claims rate.
NOTE: The selected claims and the points assigned to the selected
claims will be identified by the agency in a program directive.
(c) The field office manager will provide selected
compliance officers the construction and/or forest activities lists. The
compliance officers will make a reasonable effort to locate and inspect those
employers on the construction and forest activities lists, how- ever failure to
inspect all employers on a list will not invalidate subsequent inspections.
(6) Scheduling Health Inspections for Fixed Places of
Employment.
(a) The scheduling lists are designed as an electronic
scheduling system used by health enforcement managers to schedule inspections
at fixed places of employment for each compliance officer. Places of employment
will be listed by NAICS and randomly selected within each tier using the
following percentages whenever a list is generated. The scheduling lists will
be sorted by field office.
(A) 7.5 percent of places of employment under the NAICS
identified as Tier A.
(B) 2.5 percent of places of employment under the NAICS
identified as Tier B.
(C) Not more than 0.05 percent of places of employment
under NAICS not identified in Tiers A and B.
(b) Places of employment will be exempt from programmed
inspections if any of the following conditions apply:
(A) A location has received a comprehensive health
inspection within the previous 36 months.
(B) A location has received Voluntary Protection
Program (VPP) status.
(C) A location is in its second year, or later, of the
Safety and Health Achievement Recognition Program (SHARP).
(D) A location has graduated from the Safety and Health
Achievement Recognition Program (SHARP). Locations are exempt from inspection
for 36 months after graduation.
(E) A location has received two consecutive
comprehensive health inspections with no serious, willful, or egregious
violations, and with no inspections of any type resulting in serious, willful,
or egregious violations since the date of the first of the two consecutive
comprehensive inspections.
(F) A location has received certification as meeting
the British Standards Institute’s OHSAS 18001 standards (Occupation Health and
Safety Management Systems). Evidence of certification must be provided before
the start of an inspection.
(G) A location has a MOD rate of 0.50 and they provide
evidence to that effect before the start of an inspection.
(c) The field office managers will provide each
compliance officer a list of inspections that are assigned in descending order
from the health scheduling lists. The compliance officer will make a reasonable
effort to inspect each place of employment on that list prior to receiving
another list; however, failure to inspect all places of employment on a list
will not invalidate subsequent inspections. The compliance officer’s list will
generally be followed in descending order, but may be inspected in any order to
use the compliance officer’s time efficiently.
(7) Scheduling Health Inspections for Nonfixed Places
of Employment – An inspection may be scheduled when information such as
recognized health hazards known to be associated with certain processes are
reasonably thought to exist at a place of employment.
(8) Random Inspections – The Division will
conduct random inspections of places of employment that are scheduled and
conducted under written neutral administrative standards. Program directives
will be issued and changed when the director believes it necessary to preserve
the random nature of the inspections.
(9) Emphasis Inspections – An inspection may be
made if the place of employment is included in a national or local safety or
health emphasis program. Emphasis programs are established by identifying the
most hazardous industries and processes through information obtained from the
Department of Consumer and Business Services claim files, the Bureau of Labor
Statistics Occupational Injury and Illness Survey, the Oregon Employment
Department, and knowledge of recognized hazards associated with certain
processes. Program directives will be issued to establish and describe emphasis
programs and the written neutral administrative standards that will be used to
schedule the inspections.
(10) Farm Labor Housing Inspections – Farm labor
housing is a national and local emphasis program. A list of all known farm
labor housing locations will be sent to field offices annually. Locations may
be selected and inspected in any order to make efficient use of available
resources. Housing locations not on the list may also be inspected. Farm labor
housing is not an agricultural operation; therefore, the agriculture exemption
for employers of 10 or fewer permanent, year-round employees does not apply to
farm labor housing inspections.
(11) The Division will annually make reasonable efforts
to notify, in writing, each employer whose place of employment is rated as one
of the most unsafe places of employment, that there is increased likelihood of
inspection of the employer’s place of employment and consultative services are
available.
(12) Agricultural employers with 10 or fewer permanent,
year-round employees, both full-time and part-time, will be subject to
scheduled inspections only if any of the following has occurred:
(a) A valid complaint has been filed according to ORS
654.062, or
(b) Within the preceding two-year period, an accident
at the employer’s agricultural place of employment resulted in death or a
serious disabling injury from a violation of the Oregon Safe Employment Act or
rules adopted under the act, or
(c) The employer and principal supervisors of the
agricultural establishment have not annually completed at least four hours of
instruction on agricultural safety or health rules and procedures. This
instruction must be documented.
(A) Instruction includes any instruction conducted or
accepted by Oregon OSHA or instruction related to agricultural safety and
health that is offered or approved by any public or private college,
university, or governmental agency. The employer must maintain documentation of
the instruction. The documentation must include the date, provider, subject,
and duration of the instruction, and the signature of the person completing the
instruction.
NOTE: Certified Applicator Training Core A and B offered by the Oregon
Department of Agriculture will satisfy a portion of the required training. One
hour credit will be allowed annually for this training.
(B) For purposes of these sections, the time period
begins to run when the instruction is received, or
(d) Within the preceding four-year period, the
agricultural establishment has not had a comprehensive consultation by an
individual acting in a public or private consultant capacity. For purposes of
this section, the time period begins to run when the consultation is received,
or
(e) If the consultation was done and the agricultural
employer has failed to correct violations noted in the consultation report
within 90 days after receiving the report.
NOTE: For purposes of determining the number of employees, members of
the agricultural employer’s immediate family are excluded. This includes
grandparents, parents, children, step-children, foster children, and any blood
relative living as a dependent of the core family.
(13) Evaluation of Enforcement Scheduling:
(a) Each year Oregon OSHA will complete a summary
evaluation of enforcement scheduling, including (but not limited to) the number
of scheduled inspections and the basis for those inspections, the number of
attempted scheduled inspections that could not be completed, and the results of
those inspections.
(b) At least every three years beginning by July 1,
2012, Oregon OSHA will assess the enforcement scheduling system and other
available data to ensure that the scheduling system continues to accomplish its
statutory purpose of predominantly focusing Oregon OSHA enforcement resources
on those places of employment reasonably believed to be the most unsafe.
NOTE: See Safety by NAICS, Safety by Tier/Rank, Health by NAICS, to
review safety and health scheduling lists of employers identified by NAICS
codes and their placement in appropriate tiers.
[ED. NOTE: Tables and Appendices referenced are available
from the agency.]
Stat. Auth.: ORS 654.025(2) &
656.726(4)
Stats. Implemented: ORS 654.001 -
654.326, 654.412 - 654.423 & 654.991
Hist.: WCD 4-1981, f. 5-22-81, ef.
7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef.
1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef.
10-1-92; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 2-1996, f. & cert.
ef. 6-13-96; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA
4-2000, f. 4-14-00, cert. ef. 4-15-00; OSHA 7-2006, f. & cert. ef. 9-6-06;
OSHA 10-2009, f. & cert. ef. 10-5-09; OSHA 2-2011, f. 9-29-11, cert. ef.
10-1-11
437-001-0706
Recordkeeping for Health Care
Assaults
NOTE: For further information, instructions, and resources, visit
Oregon OSHA’s healthcare workplace violence assault log web page at:
www.cbs.state.or.us/osha/subjects/health_care_assault_log.html.
(1) Purpose. This rule implements the amendments to the
Oregon State Employment Act, ORS 654.412 through 654.423, providing specific
provisions for the recordkeeping and reporting requirements of health care
assaults, and additional recordkeeping requirements as authorized under ORS
654.025(2) and 656.726(4)(a).
NOTE: For the ease of the reader, ORS 654.412 through 654.423 is
reprinted as Appendix B to OAR 437-001-0706.
(2) Scope and Definitions. This rule applies to health
care employers and home health care services provided by health care employers.
Health care employers only include hospitals and ambulatory surgical centers,
which are defined in ORS 442.015: “Hospital” means a facility with an organized
medical staff, with permanent facilities that include inpatient beds and with
medical services, including physician services and continuous nursing services
under the supervision of registered nurses, to provide diagnosis and medical or
surgical treatment primarily for but not limited to acutely ill patients and
accident victims, to provide treatment for the mentally ill or to provide
treatment in special inpatient care facilities. “Ambulatory surgical center”
means a facility that performs outpatient surgery not routinely or customarily
performed in a physician’s or dentist’s office, and is able to meet health
facility licensure requirements.
(3) Health care assault recordkeeping. In addition to
existing general recordkeeping requirements in OAR 437-001-0700, Recordkeeping
and Reporting, health care employers must use the Health Care Assault Log, or
equivalent, to record assaults.
See ORS 654.412 through 654.423 for details required to be recorded.
Appendix A of 437-001-0706 provides instructions for completing the form.
NOTE: If the incident results in an overnight hospitalization, a
catastrophe, or fatality, it must be immediately reported to Oregon OSHA.
Record recordable injuries, illnesses, fatalities on the OSHA 300 Log. See OAR
437-001-0700.
(4) Other recordkeeping information. The following
sections of OAR 437-001-0700 apply to health care assault recordkeeping and
reporting:
Section (6) Work-relatedness
Section (14)(b) Forms
Section (15) Multiple Business
Establishments
Section (16) Covered Employees
Section (19) Change of Business
Ownership
[ED. NOTE: Appendices referenced
are available from the agency.]
Stat. Auth.: ORS 654.025(2) &
656.726(4).
Stats. Implemented: ORS 654.412 -
654.423
Hist.: OSHA 11-2007, f. 12-21-07,
cert. ef. 1-1-08; OSHA 8-2008, f. & cert. ef. 7-14-08; OSHA 2-2011, f.
9-29-11, cert. ef. 10-1-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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