Potential for more Trucking Accidents in California if New Federal Law Passes

A provision that is included in pending legislation in the U.S. House of Representatives may result in fewer truck drivers in California taking needed rest breaks while they are working. The bill would apply to truck drivers who drive into California from other states while exempting them from California’s mandatory rest break requirements. If this bill passes, truck drivers may be more fatigued and cause more accidents in both California and in the rest of the U.S.

The proposed law

A provision that is included in a House appropriations bill would exempt interstate truck drivers who drive into California from following the strict rest and meal break regulations in the state. Under California law, all workers, including truck drivers, must take one 30-minute meal break every five hours and one 10-minute rest break every four hours of work. Some other states, including Kentucky and Colorado, have similar rest and meal break laws on the books. Federal law only requires that truck drivers take one 30-minute break during the first eight hours of driving. Officials in California are concerned that reducing the amount of time that drivers spend resting may result in increased injury and accident rates in the state.

According to the Truck Safety Coalition, the legislators are attempting to preempt state labor laws that mandate additional meal and rest breaks beyond those that are required under federal law. While the law would apply to interstate drivers who drive into the state, some experts are also concerned that drivers who only drive within the state but who work for interstate trucking companies may fall into a legal loophole. They believe that their companies would likely pressure the drivers to only take the minimally required breaks under federal law instead of following the state’s requirements. The provision was introduced by two California Republicans, including Rep. David Valadao and Rep. Jeff Denham. Denham has received more than $60,000 in contributions to his campaigns from trucking organizations.

Drowsy driving truck accident statistics

In California, 15,000 large truck crashes happened in 2016. The California Highway Patrol reports that 8,989 of those collisions happened in Los Angeles. Nationally, the Federal Motor Carrier Safety Administration reports that 87,000 injury crashes happened in 2015, and 4,311 trucks and buses were involved in fatal accidents. The FMCSA reports that 55 fatal truck accidents in 2015 were caused by drowsy or fatigued truck drivers and another 71 were caused by driver inattention with unknown causes.

If the proposed law passes in the House and Senate and is signed into law by Trump, many truck drivers may not have to take the rest breaks that they currently have to take. Truck drivers drive for exhaustingly long shifts, and not being able to pull off of the road more frequently may lead them to become exhausted. In Dec. 2016, the AAA Foundation for Traffic Safety found that the crash risk for drivers spikes for every hour of sleep that they lose. Truck drivers who do not get sufficient sleep and who are also not able to take enough rest breaks may have greatly increased risks. For all drivers, AAA found that the risk of accidents doubles for people who get between five and six hours of sleep each night. When they only get four to five hours of sleep, their risks are four times higher of crash involvement than people who are more rested.

Pressures on truck drivers

Truck drivers report that they are under tremendous pressure by their companies to get their loads delivered on time, according to ABC News. When drivers are pressured to make their deliveries under tight deadlines, they may end up driving while they are fatigued. This pressure may compound the potential problems of having fewer rest breaks under the proposed federal law. If that law passes, it is likely that all interstate companies will force their workers to only follow the federal rules rather than pulling off the road more frequently or whenever they feel tired.

Drowsy driving can have serious or even fatal consequences for drivers and those who are traveling on the roads around them. Enacting federal legislation to preempt California’s meal and rest break requirements could lead to many more injuries and deaths in the state each year. Californians may want to lobby their representatives and senators about this provision in order to protect the general safety of everyone in the state.

This post was written by Steven M. Sweat.
For more legal analysis go to the National Law Review.

Trump’s Actual Impact on OSHA

In November, we attempted to look into the crystal ball to see what potential impact the new Trump administration could have on the Occupational Health and Safety Administration (OSHA). Here are some of results so far, which on the whole, are favorable to employers who suffered under the “regulation by shaming” mantra of past Assistant Secretary of Labor David Michaels.

  • Budget Cuts – As predicted, on May 5, President Trump signed a spending bill that cuts the labor department’s discretionary spending budget by $83 million. This could limit some of OSHA’s enforcement efforts.

  • Recordkeeping as a Continuing Violation – The Volks rule, which was enacted by OSHA last December as a last minute rule in response to a loss, suffered through an adverse decision in the federal courts. The new rule established that an employer has a continuing duty to create accurate records of work-related employee injuries and illnesses. This effectively changed the statute of limitations for recordkeeping violations from six months to five years and six months. On April 3, President Trump signed a joint congressional resolution under the Congressional Review Act that overturned this rule. The law is now back to the original intent of Congress that the statute of limitations for all OSHA citations is six months. This is a significant win for employers who can focus their time on current substantive safety issues instead of reviewing documents for accuracy from up to five years ago.

  • Union Representatives in OSHA Inspections of Non-union Facilities – As mentioned in the prior post, I predicted that interpretation letters could change with the new appointment of the secretary of labor. One of the most controversial of these letters was the 2013 Fairfax memo regarding walkaround rights during an OSHA inspection. The memo stated that during an OSHA inspection of a non-union facility, a union representative could be designated as the employees’ “personal representative” even without representation election or voluntary recognition of the union as the exclusive representative of the employees. This was being challenged in court and then OSHA rescinded the Fairfax memo and agreed to revise the Field Operations Manual (FOM) for its inspectors to reflect the same change on April 25, 2017. The lawsuit was then dismissed as moot since OSHA rescinded the controversial memo. The letter was viewed as an overstep by OSHA into the area of labor relations covered by the NLRB, since it appeared to be motivated by giving unions more access to non-union employers for organization efforts rather than to assist in a safety inspection. This is another win for employers.

So far, the progress has been good for employers. We will just have to wait and see how other issues develop, including the electronic recordkeeping rule and non-discrimination standard (which limits blanket post-accident drug tests), which is being challenged in two separate lawsuits, as well as the silica standard, which is being challenged in court. The DOL has to decide how strongly it will defend these rules in court which will have a significant impact on how the courts may rule. Stay tuned for updates.

Are Helmets Required in Pennsylvania and New Jersey?

As most riders know, wearing a helmet is mandatory in New Jersey. Not so in Pennsylvania where anyone 21 years of age or older and has been licensed to operate a motorcycle for not less than two full calendar years OR has completed a motorcycle safety course approved by PennDOT or the Motorcycle Safety Foundation can ride without one. Beyond the arguments for or against mandatory helmet laws is the reality of the dangers associated with riding without one. A few years ago, the Philadelphia Inquirer published an article on the Pennsylvania law that permits riders to forgo a helmet and State Representative Dan Frankel’s effort to reinstate a mandatory helmet law.

According to the National Highway Traffic Safety Institute, in New Jersey for the year 2007, there were 85 motorcycle related fatalities of which 82 % were wearing helmets. The National Highway Safety Institute estimated that 42 people’s lives were saved by wearing helmets and that 6 fatalities would have been prevented with 100% use of helmets. In 2008, 82 fatalities with 87% wearing helmets and NHTSA estimates another 42 lives saved because of helmets and 4 fatalities would have been prevented with 100% use of helmets.

In Pennsylvania in 2007 there were 225 motorcycle related fatalities. 46 % were wearing helmets and another 61 people’s lives were saved by wearing helmets. In 2008, 239 fatalities with 49% wearing helmets and another 70 lives saved because of helmets. The NHTSA also estimated that in 2007 45 lives would have been saved and in 2008 45 lives would have been saved if they were wearing helmets.

Across the US there were over 5000 fatalities in both 2007 and 2008 from motorcycle accidents with only 58% wearing helmets. NHTSA estimated that in those two years there were 3615 lives saved by the use of a helmet and another 1627 lives would have been saved if they were wearing helmets. More recently, in 2012, NHTSA estimates helmets saved the lives of 1,699 motorcyclists and that an additional 781 lives could have been saved if all motorcyclists had worn helmets. In states without universal helmet laws, 62% of the motorcyclists killed in 2012 were not wearing helmets compared to 9% in the states with universal helmet laws. Think about that for a minute.

In addition, NHTSA sponsored a study in 1996 to assess the effect of wearing a helmet upon the ability of motorcycle riders to: (1) visually detect the presence of vehicles in adjacent lanes before changing lanes and (2) to detect traffic sounds when operating at normal speed. The results indicate that wearing helmets does not restrict the ability to hear auditory signals or the likelihood of seeing a vehicle in an adjacent lane prior to changing lanes.

I have no reason to doubt these figures. A few years ago while traveling to Court in rush hour traffic on I 95 towards Philadelphia I saw a rider go flying over his handle bars onto the roadway. It was shocking to say the least. I thought he was unconscious. I pulled over the side of the road and watched as he got up. Another motorist an I assisted the rider to the side of the road. He had a full face helmet and a motorcycle leather jacket and blue jeans. He was disoriented and almost lost consciousness a few times. His knees were scraped through his jeans and bleeding. His jacket showed the signs of a serious incident. His helmet showed damage that would have caused a serious injury to a rider without one. Despite his protective gear, I was sure that he had suffered serious injuries. I am happy to report that he called me the next day to tell me that but for his bruised/scraped knees, he was fine. It is clear to me that his helmet and jacket had adequately protected him from more serious harm. As a rider I routinely see other riders in Pennsylvania riding without helmets. In both states it is common to see riders in shorts, sneakers and T shirts. I rode for many years in jeans and a T shirt but always with a helmet. It is great to ride on a warm summer day without the bulk of protective clothing. It’s also dangerous. At many of the rally’s I attend I am often engaged by visitors about their right to ride without a helmet. It’s a debate worth having. What is often overlooked are the true consequences of that action. As indicated above, helmets save lives. That’s indisputable.

What is missing from those statistics are the consequences of sustaining an injury as a result of not wearing a helmet and surviving. NHTSA estimates on a national level we would have saved 2.7 billion dollars in 2007 and 2.9 billion dollars in 2008 if there was 100% helmet use. This of course fails to consider the impact to the rider and their families. Many head injuries are quite serious and have long term consequences, job loss, medical bills and other financial strains. Many of the more serious head injuries lead to long term disability and regular care. We see this regularly when representing injured riders. As many of us in the motorcycle community know, motorcycle insurance provides in most cases no medical benefit and in others, very little coverage. Riders without insurance who suffer serious head injuries become dependent on Federal programs such as SSI and Medicaid. Even people with insurance don’t have enough coverage for a lifetime of care.

I urge anyone reading this to reconsider riding without a helmet. I’m sure the families of those who lost loved ones or who are now watching someone suffer because they were not wearing a helmet would join in my request. Every motorcycle rider understands that there is some danger associate with riding but that doesn’t mean that you should not be prudent and take precautions to minimize your risk.

COPYRIGHT © 2015, STARK & STARK     Authored By:  Joel R. Rosenberg

A Proactive Approach to Travel Risk Management

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An improving economy and updated business practices have contributed to companies sending more employees than ever on international business trips and expatriate assignments. Rising travel risks, however, require employers to take proactive measures to ensure the health and safety of their traveling employees. Many organizations, however, fail to implement a company-wide travel risk management plan until it is too late – causing serious consequences that could easily have been avoided.

travel risk management

The most effective crisis planning requires company-wide education before employees take off for their destinations. Designing a well-executed response plan and holding mandatory training for both administrators and traveling employees will ensure that everyone understands both company protocol and their specific roles during an emergency situation.

Additionally, businesses must be aware that Duty of Care legislation has become an integral consideration for travel risk management plans, holding companies liable for the health and safety of their employees, extending to mobile and field employees as well. To fulfill their Duty of Care obligations, organizations should incorporate the following policies within their travel risk management plan:

  • A customized policy specific to the organization and the specific needs of traveling employees.
  • Clearly communicated protocols that are enforced to help educate and protect the safety and health of traveling employees.
  • Response plans and procedures for handling medical/health emergencies.

Proactive Resources for Your Traveling Employees

A travel risk management strategy can only be successful if your workforce is given the necessary resources well before travel occurs. An important part of any travel risk management strategy involves answering common questions employees may have regarding their upcoming travels. It’s also a good idea to provide them with follow-up information so they can be up-to-date.

Not only will a company-wide pro-active travel risk management plan empower employees with the information they need, but implementing such a plan can also help keep your company’s reputation and financial standing in check and prevent any liabilities against your business. The following resources can be useful as part of your overall travel risk management strategy:

  • Travel logistics such as hotel/meeting site location and reservations details, nearby pharmacies and medical clinics, and passport and/or visa arrangements. It is also crucial to share contact information in the event employees need help during an emergency – such as that of your travel assistance partner or internal emergency resources – and encourage them to add this information to their mobile phone contacts.

  • A medical overview is essential, especially if the host country requires visitors have documentation of specific vaccinations. Employees should understand and be up-to-date on all routine vaccinations (such as influenza, measles, and mumps). The CDC’s Travelers’ Health website has valuable information, such as worldwide health alerts, although a travel assistance partner can provide this information directly to your employees prior to travel. Additional insight your company can provide to traveling employees is information about health risks in their destination countries. This ensures employees are well aware of the quality of local food and drinking water as well as where to find quality medical care.

Also, since most health insurance plans do not cover members when they are traveling outside the U.S., businesses should purchase additional coverage. Even if their plans provide coverage outside the U.S., many health insurance policies aren’t able to mitigate all of the risks associated with business travel. It would only take one international medical evacuation (which can cost more than $100,000 from business hubs in Dubai, UAE to New York, or China to Texas) to make a serious impact, not just on your traveling employee but on your company as a whole.

  • A detailed synopsis of the destination’s political standing is crucial to keep your employees safe while traveling, as many regions of the world are experiencing political unrest and living under the very real threat of terrorism. It is important to ensure that your employee benefits package includes security coverage for employees traveling to high-risk areas.

Advance knowledge of the political status of a country will prepare employees should they face an unexpected issue abroad, as would these resources:

  • American embassies and consulates at the destination country, as well as the State Department’s emergency contact numbers.

  • Travel alerts, which provide information on risks to the security of U.S. citizens. Though usually short-term, these alerts must be taken seriously.

  • The State Department’s Smart Traveler Enrollment Program (STEP) is an extremely reliable resource that provides up-to-date location-specific security updates to any employee enrolled for the destination as well as information on the nearest U.S. Embassy. The enrollment will help U.S. Embassy or nearest U.S. Consulate to be in contact with your traveler in the event of an emergency.

Keep in mind that it is not just traveling employees – but also the employers – who need to be prepared for a travel-related emergency. Planning ahead and implementing company-wide crisis management education allows your workforce to be fully aware of the guidelines and protocols. Successfully mitigating a crisis without any communication missteps can prevent a crisis from spiraling into disaster.

 
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Mind Regulations When It Is Time To Mine

McBrayer NEW logo 1-10-13

The Department of Labor recently issued a reminder to employers involved in themining industry. As spring (slowly) approaches, surface mines will reopen. As miners head back to the job site and prepare equipment for the new season, potential for injury is high.

Of the 12,000 metal and nonmetal mines overseen by the Mine Safety and Health Administration (“MSHA”), almost half are operated on a seasonal basis, closing for winter when conditions make operations too difficult. According to MSHA information, injuries at seasonal mines climb sharply in the spring. MSHA is vested with the power to enforce compliance with mandatory safety and health standards as a means to eliminate fatal accidents; to reduce the frequency and severity of nonfatal accidents; to minimize health hazards; and to promote improved safety and health conditions in the Nation’s mines.

Miner operators and managers should review safety information available at http://www.msha.gov and take the time to educate employees on the numerous hazards associated with the job. Always keep in mind that employers are responsible for providing a safe workplace; employee injuries are not only detrimental to operations, but can be costly – both financially and reputation-wise.

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