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June 30, 2016
Appeals Board decisions: Was workers’ exposure willful, or did the employer make an honest mistake?

What’s your procedure for handling workers’ complaints about health symptoms?

Some health symptoms are “nonspecific,” meaning they can have more than one possible cause. A headache, for example, can result from exposure to hazardous airborne chemicals—or the worker could be coming down with a cold or might have skipped lunch. It’s important to carefully investigate any symptoms your workers report, especially if you get multiple reports from multiple employees.

If you fail to correctly identify the cause of workers’ symptoms, you could create trouble for yourself. One California employer learned that the hard way after eight workers ended up in the hospital with symptoms of carbon monoxide (CO) poisoning, leading to two willful citations from Cal/OSHA.

Symptoms of trouble

Throughout the summer of 2011, employees of Ontario-based temporary agency Barrett Business Services had complained to Barrett’s on-site safety manager about heat, poor ventilation, headaches, and nausea in the warehouse where they worked. They also complained about exhaust fumes from one of the propane-powered forklifts at the workplace.

Together with the site owner, Barrett decided that the workers were suffering from heat-related illness and conducted heat illness training. Neither employer looked closely at the complaints about the forklift, even though workers claimed it was releasing large amounts of exhaust into the enclosed warehouse.

On September 28, 2011, CO levels at the worksite spiked above the Cal/OSHA ceiling limit of 200 parts per million (ppm), and eight workers were taken to the hospital with symptoms of CO poisoning.

A Cal/OSHA investigation resulted in multiple citations against Barrett, including two willful violations of General Industry Safety Orders Section 5155, the airborne contaminants standard, for failing to monitor CO levels at the worksite and failing to control CO levels.

Barrett appealed the citations, arguing that it had not violated the safety orders.

Honest mistake or willful indifference?

Barrett’s defense was that it didn’t know that a hazardous condition existed and therefore wasn’t willfully guilty of failing to correct it. The employer argued that:

  • The forklifts were covered by a service contract and had been inspected and maintained every 3 months.
  • The site’s general manager frequently spoke with one of the forklift operators, who didn’t complain about symptoms or emissions.
  • The management team at the worksite worked in the facility and didn’t personally experience any symptoms related to CO exposure.
  • If the management team at the facility had reason to believe a forklift wasn’t functioning properly, abatement of the problem was simple under the service contract.
  • Management was aware of the workers’ reports of illness but thought it was heat illness; as a result, heat illness training was conducted.
  • Employee complaints allegedly communicated to management were inconsistent with exposure to CO.

But the employer’s arguments were not as airtight as they first appeared to be.

It was true that the forklifts were covered by a service contract, but it was also true that the site owner had experienced difficulty finding someone to honor the contract. As a result, the forklifts had last been serviced 2 months before the first reports of symptoms, and finding someone to service them if a problem had arisen might not have been as simple as management claimed.

Practice Tip

Any source of combustion can release carbon monoxide into the workplace, but carbon monoxide detectors can warn of hazardous levels.

As for the forklift operator who hadn’t complained of any symptoms to his manager, he was only one of three operators—and the other two were among those who complained of symptoms. Moreover, he knew that others had complained. The operator testified that he had been told by a supervisor not to operate the forklift in question around female employees because it was making them sick.

As the administrative law judge (ALJ) who heard the appeal noted, this also showed that management was aware that workers were getting sick and that the problem was related to the propane forklift.

As for the managers themselves, the ALJ noted that they did not testify regarding how much time they spent in the warehouse where the propane forklift was in operation. Therefore, their exposures weren’t necessarily comparable to the exposures the warehouse workers received.

The ALJ determined that Barrett had known that workers were becoming ill, and that the forklift emissions could have been causing the illness, but didn’t investigate or correct the hazard. As for the argument that the employer had mistaken the symptoms for heat illness, the ALJ treated it as unconnected—Barrett should have looked into the problem with the forklift regardless of heat issues at the facility.

Ultimately, the willful classification was upheld.

The takeaway

“Hazard identification” is sometimes treated superficially in workplace safety and health. Workers in a warehouse are complaining, for example? They must be too hot.

Don’t give hazard identification short shrift. This employer did and ended up with two willful violations and more than $80,000 in penalties as a result.

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