What to Expect: Changes to OSHA Under the Biden Administration

President Joe Biden has taken a number of actions that indicate an increased focus on worker safety, and increased pressure on the Occupational Health and Safety Administration (OSHA). On his second day in office, the president signed an Executive Order on Protecting Worker Health and Safety directing the OSHA to issue new COVID-19 guidance. He also ordered the agency to investigate whether new standards are necessary and to target enforcement to protect a greater number of workers from COVID-19 hazards. This order, coupled with Biden’s nomination of former union leader Marty Walsh as Secretary of Labor, with oversight for OSHA, and the Obama-Biden administration’s pro-labor history, portend an aggressive and robust enforcement of workplace safety.

Here is a checklist of what employers can expect from the new administration.

1. New COVID-19 guidance has been issued.

Following a directive from Biden, OSHA released new COVID-related guidance. The new guidance, which provides insight into what a new standard would likely include, says employers should:

• Provide all workers with face coverings unless their work requires a respirator
• Provide COVID-19 vaccinations at no cost to eligible employees and guidance on screening and testing
• Implement safety measures that do not distinguish between vaccinated and non-vaccinated employees
• Provide paid sick-leave and implement non-punitive policy for quarantine and isolation
• Assign a workplace coordinator to be responsible for COVID-19 issues

2. Larger employers, employers with whistleblower complaints will be targeted.

President Biden’s executive order told OSHA to target larger employers and employers with whistleblower complaints for investigations. The directive also called forhigher fines for COVID-related citations and stricter oversight and coordination with state plans.

3. The number of OSHA inspectors will increase.

As a candidate, Biden specifically called on former President Trump to “double the number of OSHA investigators.” If additional hiring begins immediately, implementation of new inspectors will likely take around 18 months.

4. Leaders with pro-labor leanings will oversee OSHA.

Biden nominated former union leader and Boston Mayor Marty Walsh as Secretary of Labor and tapped Julie Su, the head of California’s Labor and Workforce Development Agency who formerly worked as a civil rights lawyer, for the Deputy Secretary of Labor role.

5. The original Electronic Reporting rule will be restored.

A 2017 Obama-era rule began requiring certain employers to report employee injuries and illnesses electronically for public viewing. The rule was never formally repealed by Trump, and Biden will likely restore the original version of this rule to force employers to report detailed injuries and illnesses. Without legal challenges, this information would be made public.

6. General Duty Clause (GDC) citations for COVID-19 violations of CDC guidelines will increase.

The GDC, which states places of employment must be free from hazards “likely to cause death or serious physical harm” to employees, is used only when there is no OSHA standard for a particular hazard, like COVID-19. Biden will likely immediately issue more GDC citations for employers who violate the CDC’s COVID-19 violations.

7. A permanent infectious disease standard may be finalized.

After H1N1, President Obama prepared a permanent infectious disease standard, which would require high-exposure workplaces to implement infection control programs to protect workers. Look for Biden to resurrect this proposed standard and push for its adoption, even if the pandemic ends, to ensure future preparedness.

8. The 2016 OSHA anti-retaliation rule may be enforced.

Biden will likely begin re-enforcing a 2016 OSHA final rule prohibiting employers from retaliating against employees for reporting injuries/illnesses.

9. The Fair Pay & Safe Workplaces Act will likely be reinstated.

Under this act, government contractors and subcontractors are required to disclose any and all OSHA citations if the contract/bid exceeds $500,000.

10. Climate Change standard may be implemented.

The new administration may require OSHA to develop a federal standard on workplace heat stress for indoor and outdoor workers. It would most likely mirror the Cal/OSHA (California OSHA) heat standard.

What employers should do

In light of the expected increase in workplace safety enforcement, employers should ensure their safety and health programs are compliant with all OSHA rules and continue providing safe workplaces by identifying and eliminating safety hazards.

A full service, moment of crisis to final resolution team, Sheehy, Ware & Pappas P.C. has an extensive track record helping clients across nearly every industry secure favorable results on Occupational Safety and Health Administration matters nationwide. Contact the OSHA lawyers at Sheehy Ware & Pappas for assistance with all OSHA matters at www.sheehyware.com/practice/osha/.

Social Media AI Aims to Foil OSINT Teams

The Artificial Intelligence (AI) inside Facebook, Twitter, and Instagram has fundamentally changed focus in 2021. The good news for insurance is that the new AI has shifted the content users see back to its roots: selfies, personal stories, family photos, documentation of fitness goal achievement and lots of data about peoples’ personal lives.

The creepier news is that refinement of the AI presents a “Stepford Wife” user experience where bragging and lifestyle photos are now center stage. The AI is so laser focused on presenting positive, nonpolitical content that individual users’ data is more exposed than it has been in years. All the political camouflage for personal data (diluting personal photos inside of a long stream of political posts) is stripped away, leaving pure personal information.

So how is social media protecting this user data? The venues are attacking external bots with renewed vengeance. Content bots, scanning bots, scraping bots are all now facing new, complex technical challenges that have been applied across almost every social media platform. The anti bot technology is so aggressive that even human users are being penalized for using ‘bot like’ behavior.

There are consequences for Insurance OSINT teams. As Investigators search social media profiles, their behavior is similar to a bot, where many profiles are opened in rapid succession and lots of friend profiles are also opened. Once flagged as a bot, even human OSINT investigators have seen their search profile deleted instantly in the middle of an investigation by social media anti-bot AI rule. Once an investigator’s search profile is deleted, it is not possible to access social media data. Furthermore, the AI can now penalize an IP address, preventing new profiles from being used on those machines for up to 30 days.

2021 has been an important year for social media, and the venues have responded with their best technical answers. As social media data becomes more and more useful for insurance investigations, it is more critical than ever to check the work product delivered by social media software and teams. For those using automated social media solutions, it’s time to double check that the solutions still locate profiles accurately. It is also important to ensure whole profile is being delivered instead of just a handful of posts that could be captured before the AI closed the down the bot.

Social media data is stronger than ever as a method to document lifestyle, injury recovery, and ongoing behavior. If your investigation team is current with the new technical environment, the data will be robust. We all just have to work a little smarter to get it. 

By: Marci De Vries-Todtz, CEO, Fraud Sniffr Inc.

Looming Collisions

In many rear-end collisions involving a vehicle that is stopped or moving slowly in the lane of travel, it is common for the driver of the striking vehicle to say that they did not realize the lead vehicle was stopped or moving very slowly until it was too late to avoid the crash. Drivers in these situations likely experienced a phenomenon called “looming.”

Human factors experts address the issue of looming in vehicle collision cases to determine whether the driver perceived and responded to the slower moving or stopped vehicle in a reasonable amount of time and whether the driver’s actions were a cause of the crash.

What is Looming?

Many vehicle crashes involve a driver rear- ending a slow-moving or stopped vehicle on the highway.

These crashes often involve vehicles that have recently entered a lane of travel but have not yet accelerated to highway speeds or disabled vehicles that have slowed or stopped in the lane
of travel. A driver’s ability to avoid rear-ending a slow-moving
or stopped lead vehicle depends on a number of factors, but often depends on a driver’s ability to detect their rate of closure to the slow-moving vehicle. While drivers can easily determine that they are approaching or getting closer to a lead vehicle, it is difficult for drivers to estimate closing speed, or how quickly they are approaching the lead vehicle, until the vehicles are close together. In the field of human factors, the perception of the rate of closure to a lead vehicle is commonly referred to as “looming.”

Consider the following example:

Under real-world driving conditions, a driver traveling at 65 mph on a highway that encounters an 8-ft wide vehicle stopped in the lane of travel will not be able to estimate the closing speed until he or she is only 195 feet away from the stopped vehicle. At a speed of 65 mph, the driver then has only about 2 seconds to respond and avoid the collision.

Why only 195 feet in this example? Because that is the calculated point of looming detection.

The point of looming detection (PLD) is the distance from an object or vehicle at which an observer is first able to detect the rate at which he/she is closing in on that object and will strike it unless action is taken[1]. The PLD is calculated using three factors: the relative speed between the two vehicles, the width of the lead vehicle, and the looming threshold value.

The looming threshold value is the point at which a driver can perceive that they are approaching a lead vehicle rapidly. The primary visual cue used to determine closing speed is the rate of change in image size of the lead vehicle on the retina. When drivers are far away from a lead vehicle, the image size grows very slowly and a driver is unable to perceive the rate of closure because the looming threshold has not yet been reached (Figure A). But as a driver gets closer to the lead vehicle, the image size starts to grow very rapidly and allows the driver to perceive the rapid rate of closure and the need to take evasive action to avoid a collision (i.e., the looming threshold is reached) (Figure B).

 For demonstration purposes only. Figure not drawn to scale.

Research on perception-reaction time (PRT) in response to looming indicates that most drivers who experience looming under real-world conditions are able to respond to looming by braking within 1 second or less. This PRT value assumes that drivers are looking at the slower-moving vehicle at the instant the threshold is reached. However, a reasonably attentive
driver who is scanning the roadway environment may not be looking at the slower-moving vehicle at the instant that looming becomes perceptible. Interestingly, drivers who look back at the lead vehicle after the looming threshold has been surpassed can respond in less than 0.5 seconds, on average[2].

In addition to looming, information available in the roadway environment can also affect a driver’s ability to perceive that a vehicle is stopped or moving slowly in the lane of travel.
There are situations when sufficient information is available in the roadway environment to inform a driver that a vehicle is stopped. For example, a vehicle stopped with cones or triangles behind it, a vehicle stopped at a red light with brake lights illuminated, or a vehicle stopped next to a prominent stationary object such as an overpass are all situations where a driver does not need to perceive looming to know that a vehicle is stopped or moving slowly in the lane of travel.

A human factors investigation of a rear-end collision involving a slow-moving or stopped vehicle on a high- speed road includes:

• Calculating the point of looming detection
• Determining the appropriate perception-reaction time for the driver
• Analyzing whether there was sufficient information available in the roadway environment for a driver to determine that the lead vehicle was either stopped or moving slowly

About Exigent

Exigent is a legal technology provider and consulting organization that is breaking industry boundaries and raising the bar for data-driven decision-making. Through a powerful combination of technology, analytical thinking, and financial acumen, Exigent’s multidisciplinary team develops solutions to drive change in business, in the legal department and beyond. Whether it is AI for contract management or supplying expert witnesses through its Forensic Consulting and Medical Legal Services divisions, Exigent provides businesses with the questions and answers they need to make the most of the digital disruption. For information about Exigent, visit exigent-group.com.

If your case involves a rear-end collision with a slow-moving or stopped vehicle, contact Dr. Nancy Grugle to discuss how looming may have played a role in the collision.

Nancy L. Grugle, Ph.D., CHFP

Human Factors Expert | Forensic Consulting Telephone. 610.255.2171 | Mobile. 720.879.1162

The Use of Emerging Technologies in Structural Collapse Investigations

The accurate and thorough documentation of existing conditions that exist immediately after a structural failure is critical for the proper analysis and evaluation of failed buildings or building systems. This is even more critical when the failure investigation involves a full or partial structural collapse. Investigation of any structural failure requires meticulous documentation of the condition of the structure in its damaged state; however, such documentation is difficult when dealing with collapsed structures due to a number of factors including, but not limited to, site safety and access limitations. Additionally, there is the potential that additional damage, deterioration, or spoliation of the structure will occur from exposure to weather or even vandalism. Because of this, it is imperative that the documentation of the existing conditions be completed as quickly as possible after the collapse event to prevent degradation of the post-collapse conditions. Thus, given the need to quickly and thoroughly document the conditions along with the need to maintain the safety of the investigators and prevent additional damage, it seems that the forensic investigators are being asked to complete a difficult, if not impossible task. While this was trying in the past, new technologies are making the job of such documentation not only more accurate and thorough, but also increasing safety for the investigators, coupled with reducing the time that it takes to complete the documentation of the failed structure.

Traditional documentation methods employed by forensic experts include taking numerous photographs and preparing detailed sketches of the collapsed structure. While these methods have a proven track record, and are unlikely to go away completely, by their nature such documentation methods are time consuming, which is a luxury that forensic experts rarely have and something that property owners and insurance companies typically look to avoid. Additionally, keeping track of where photographs were taken and what particular items or elements are being documented at which locations can be a monumental task that is both difficult for the expert and expensive for their client. This is where some of the recent technological advances available to forensic experts really shine.

Many recent advances in technology give forensic investigators the ability to accurately and thoroughly document conditions after a structural collapse while making the process safer for the investigators and reducing the time to document the conditions. These new tools have been used in other industries in the recent past, including the construction and real estate industries; however, the integration of such tools to the investigation of structural collapses has become more feasible and realistic with the continued development of the software that powers these tools. Moreover, one the best takeaways includes the quality of the cameras that capture images and video, memorializing site conditions for future review and purposes of litigation.

Some of the tools available to investigators evaluating structural collapses include three-dimensional mapping and imaging tools and unmanned aerial vehicle (drone) photography software. With the recent advances in the capabilities of these tools, forensic experts can create fully digital three-dimensional models of a collapsed structure from both the inside and the outside of the building. The common three-dimensional mapping and imaging tools allow for complete and accurate documentation of the interiors of damaged structures using high-resolution digital photographs of all surfaces which can then be assembled to create a complete three-dimensional model of the structure. This allows a forensic investigator to not only quickly and accurately document the existing conditions, but these tools allow the experts and other interested parties to do a virtual-walk through of the structure with the flexibility to observe all exposed surfaces. The idea of taking a client or jury through a collapsed structure by effectively immersing them into the building, is one of the most compelling pieces of evidence a forensic expert can offer. Furthermore, these mapping and imaging tools don’t just allow for the visual observation of the existing conditions but provide a fully dimensioned model of the structure. Similarly, visual imagery collected using drone mounted high resolution cameras allow for all exterior surfaces of a collapsed structure to be documented and can be used to create a three-dimensional model of the exterior. Additionally, depending on software compatibility, the models created by these systems can be combined to create a fully integrated three-dimensional model of the entire structure both inside and out. This allows for the condition of a collapsed structure to be thoroughly documented in a manner that is typically more thorough and more accurate.

Technology is aiding all industries and now we see how it’s aiding the forensic expert and their clients. Documentation of a collapsed structure can now be done in more accurately and in less time than with traditional documentation techniques, allowing forensic investigators to spend less time within dangerous areas, facilitate accelerated repairs of these structures, while memorializing conditions to be presented more effectively to claims professionals and litigators, and most importantly a jury. The days of static images are over, technology has made forensic reporting dynamic and immersive.

By: Mr. Terence Kadlec, PE, Practice Leader, Construction and Mr. Andy Guerra, PE, SE, Technical Lead, Construction Envista Forensics