Who is Your Customer?

But first, this public service announcement.

Summer is here, and if your organization doesn’t already have a policy on energy drinks, you should do the research and develop one. I had long been skeptical of energy drinks because I know that anything that artificially enhances body function always comes with consequences, especially if it’s overused. It’s no different than any prescription drug that supplants the body’s failed functions. There are always side effects. With heat stress or any other kind of stress, the body gets tired, which is how it tells you that it’s exhausted and needs rest to repair itself. If we artificially stimulate the body to ignore those signals, the outcome is not just bad – it can and has become deadly.

In the years of the energy drink boom, I was a contractor. On two occasions, I had healthy 20-somethings helicoptered to hospitals from remote areas after they collapsed and displayed symptoms of a heart attack or stroke. Both instances occurred in over 100-degree work environments. On each occasion, at the paramedics’ request, we looked for and found a cooler full of energy drinks. The victims couldn’t answer questions, but the paramedics had already seen the symptoms and needed to know if that was what they were dealing with.

I decided to launch into research and found some concerning issues with several energy drinks that led the contractor I worked for to do what the U.S. Department of Transportation has done – prohibit energy drinks on our work sites. The problem is what I mentioned above. A cycle begins in which users rely on energy drinks to pep them up for the workday. The energy drinks mask body function limits. Over time, if energy drinks are consumed daily, the consumer may not even realize they are damaging their body – sometimes permanently – because they have essentially become addicted to the cycle.

During my research, I found a 2015 university-based research report on the consumption of energy drinks. In conjunction with the Mayo Clinic, researchers published their clinical findings (see https://newsnetwork.mayoclinic.org/discussion/mayo-clinic-study-one-energy-drink-may-increase-heart-disease-risk-in-young-adults), which confirmed what emergency rooms and hospitals had been reporting for several years. The use of energy drinks, consumed throughout the day as a means of coping with high physical stress in the workplace, has detrimental health effects, including heart stress that has led to the death of otherwise healthy young adults. There are now numerous studies that cite similar concerns. Safety and health professionals should be reading them.

Also in my research, I found that users of energy drinks in these controlled clinical studies – who drink two or more energy drinks a day – experienced a variety of symptoms, including insomnia; anxiety; nervousness; onset of Type 2 diabetes; a stress hormone increase of up to 74%; cardiac arrest; abnormal heart rhythms; niacin overdose; rapid heartbeat; caffeine poisoning; and addiction. The stress hormone issue may be one of the worst side effects. Enhanced stress hormones indicate that the ingredients in the drink are simulating the effects of adrenaline. In stress events, adrenaline is produced principally by the adrenal glands on top of the kidneys. Adrenaline plays an important role in our fight-or-flight response by increasing blood flow to muscles and output of the heart. The additives in most popular energy drinks stimulate users in the same way adrenaline does. But unlike the body that lowers adrenaline production when the stress passes, the chemicals in the drinks do not. Look at the labels. Energy drinks are usually advertised to increase productivity, metabolic stimulation, stamina, physical endurance and mental acuity. The ingredients in these beverages include but are not limited to caffeine; sugar; niacinamide; carnitine; amino acids; herbal extracts; natural extracts; taurine; guarana; ginseng; vitamins B3, B6, B9 and B12; sucrose; glucose; inositol; and a variety of preservatives. One energy drink a day may be tolerable, but if you ask your doctor, you will find that a daily diet of many of these additives will easily result in organ damage.

‘Consume Responsibly’
The energy drink industry has labeled their products with warnings such as “consume responsibly.” They have FAQs on their websites that address caffeine, but they don’t address the other ingredients with the potential to do damage if they are not consumed responsibly. So, what does “consume responsibly” mean? Does it mean reading the label and looking up the ingredients to see what overuse can do to you, or does it mean talking to your doctor about using them? Maybe it means looking up the energy drink on the bottler’s website. Every bottler website I reviewed mentioned that their ingredients are regulated by the U.S. Food and Drug Administration. That is true of the ingredients. However, they don’t mention that because of a loophole, the FDA does not regulate, examine or approve the mixture of ingredients the energy drink industry sells. Most of the bottlers mention that they follow or exceed the requirements of the American Beverage Association, an association of member companies that represent 95% of the energy drinks sold in the U.S. The ABA recommends labeling, and bottlers do go above and beyond the ABA mandatory requirements by complying with the ABA guidance for responsible labeling, the most important of which is “consume responsibly.”

So, if you are a consumer of energy drinks or a policymaker for the safety of your workers and colleagues, I encourage you to do your research. Be proactive and inform your colleagues and the workforce about these issues. Add this to your excessive heat policies. If you have the authority, I encourage you to develop policies that limit if not prohibit energy drinks on work sites. Instead, do what is pretty common among aware employers and encourage the limited use of electrolyte-replacing sports drinks. Sports drinks have a long and fairly uneventful history. We mostly see a sports-drink-to-water consumption rate of 1 volume of sports drink to 3 or 4 volumes of water. You should also consult with your local emergency rooms, as I have done. I have found strong opinions among doctors who have treated energy drink overdoses and will be glad to come to your site and address the issue from their perspective. Yes, you will get pushback from the field, but that is why we educate when we administer. Don’t wait until the first incident to do something about this risk to your employees.

Who is Your Customer?
This is a perfect opportunity for a segue into the primary topic of this article: Who is your customer? When you inform and protect your co-workers and colleagues regarding energy drink use and risks, you are also protecting your employer. That’s especially so if you are providing energy drinks to employees. If an employee has a health reaction to energy drinks provided by the employer, that employer is responsible under OSHA. If the employer does not provide energy drinks but knows of the adverse health effects of energy drink overuse, the employer can be held responsible by OSHA if an on-the-job energy drink abuser is hospitalized during work. The responsibility opens the door to other bad scenarios.

When consulting with client utilities and contractors, and when training new safety professionals, I always ask, “Who is your customer?” It’s become even more of a concern for me over the last 20 years as I have represented employers as an expert in OSHA actions and civil suits. This is because as I have worked these cases time after time, I have seen well-intentioned activities designed to protect workers that left employers without a defensible position when it came to regulatory or legal action.

It might seem odd to start a topic with the bottom line, but it’s appropriate here. The bottom line is that if you are a safety professional, you have two customers: the employee and the employer. Your work to protect either of them is not mutually exclusive. What you do to protect your employees can help them, but the same actions can hurt your employer if you do them incorrectly. What you do to protect your employees can also protect your employer from both OSHA actions and civil actions.

Here is a disclaimer: I, Jim Vaughn, the author of this article, am not a lawyer, and Incident Prevention is not offering legal advice. I do serve as an expert witness defending employers in both OSHA and civil actions, so I have knowledge of what the expectations are and what does and does not protect the employer. Let’s begin with some of the most common examples.

Tailboard Records
Tailboard forms, job briefing records and job hazard analysis forms – all one in the same – are featured in every case I have been involved in for the last 20 years. I will refer to them here as tailboards. You should know there is no OSHA rule that requires you to use and file a tailboard form. That is usually news to lots of readers. I do agree with many experts that a form, properly designed and implemented, is an indispensable tool resulting in effective tailboards and safe work. The problem is that many forms I see are neither properly designed nor properly implemented. When that happens, crews are not safer, and neither is the employer.

In the cases I have consulted on, tailboard records come to bear in three different ways with OSHA. Obviously, different results may come from state plan officers and certain regions, but here is what I have found. When a compliance officer arrives at what they call an inspection (we call it an investigation), they ask for OSHA 300 logs; safety program, safety manual and training records; and records of tailboards or what they call job briefing forms. If you don’t have tailboard forms, you will not hear a second request or a criticism. You are not required to use or retain them, so there is no violation. However, the officer will interview employees and supervisors, and from those interviews they will conclude whether you hold tailboards and if the tailboards meet the OSHA-mandated expectations found in 29 CFR 1910.269(c), “Job briefing.” The same requirements are found in 1926.952 for construction work. If their interviews determine that the job briefings were inadequate, OSHA will cite the employer. That citation is fodder for civil actions, which we will address later.

The second scenario follows the conclusion that tailboards were not held or were insufficient. If that’s the case, the training of the work crews becomes the second focus. Where training and tailboards are found to be insufficient, we typically see violations classified as serious or even willful.

The third scenario is that the employer has tailboard forms and proudly turns them over to OSHA, and OSHA analyzes them and uses them against the employer. That is because the record can work both ways. The forms themselves either support the employer’s contention that they perform job briefings, or they contradict the employer’s claim. I have spent untold hours in depositions and on witness stands, explaining an employer’s policies and procedures simply because the employer had poorly or inconsistently used forms that gave rise to the violation. So, if the safety manager wants to protect employees and the employer, the tailboard form and policy are great places to start. Here are some suggestions.

Tailboard Form and Policy Suggestions
First, set goals. We sometimes get so caught up in forms that we forget what we are trying to accomplish. The goal of the form should be to prompt the necessary safety-related hazard identification and response by the crew. The form itself should reflect the elements of 1910.269(c) and must be completely and competently filled out. It also must be reviewed by supervision, and inadequate responses must be brought to the responsible person’s attention and corrected if the forms are to be retained. We find numerous forms missing or not completed on the day of an incident. We find forms without completed sections or those that lack any reference to the work or task related to the incident that caused the injury. This is where training comes in. Procedures are only as good as the training you do when you roll them out to the workforce and the discipline you use in the policy’s execution. If you explain why the form is important, plus how the form itself prompts hazard recognition and improved safety through identification and remediation of hazards, the form becomes a tool that improves safety. Having done so, it also becomes an asset for the employer if the worst should happen.

Training records, equipment inspection records, work site safety policies and safety manuals are no different. Some training has associated record retention required by the state, like crane and forklift operation. OSHA requires the employer to ensure the employee has demonstrated safety-related skills, and that is typically done with a written record even though it is not required by the OSHA statutes. If you write or issue policies and manuals, they must apply to the work you do. Too many employers take another employer’s safety manual, distribute it to the field as their own and don’t even know what’s in it. The workforce must be aware of the policies and practices, and they must be following them in the field. This is where your supervisors must also be experts on the employer’s policies and enforce them in the field. These practices work to ensure the safety of the workforce, which is why OSHA places so much emphasis on them with employers. If you protect the workplace customer, you also protect the employer.

Civil actions are the last aspect of the customer’s protection. Incidents still happen even with our best intentions. When the worst happens, lawyers get involved. If they find any suggestion of negligence or willful violation of OSHA policies, they are going to parse every record and interview conducted by OSHA and try to create a case for negligence against the employer and often the employer’s supervisors. If you have done your job to protect your customers, there will be no merit to the civil claims. It doesn’t mean they won’t try, but it does mean that you will have a good prospect of prevailing in the civil case.

Conclusion
This is the world we live in today, and your employer needs you to effectively execute your job as much as your co-workers do. If you feel like you lack the knowledge to review and develop effective policies, consider consulting with an attorney who is an OSHA specialist or with consultants who have experience in OSHA compliance. There are many out there who can audit your safety program for effectiveness in protecting your customers, the field and the front office.

About the Author: After 25 years as a transmission-distribution lineman and foreman, Jim Vaughn, CUSP, has devoted the last 22 years to safety and training. A noted author, trainer and lecturer, he is a senior consultant for the Institute for Safety in Powerline Construction. He can be reached at jim@ispconline.com.

AUGUST-SEPTEMBER 2021

• Managing Risk Through Cognitive Impairment Testing
• Establishing a Comprehensive Ergonomics Program During a Pandemic
• Are Your Lessons Learned Making Your Workers Safer?
• Improving Job Briefings
• August-September 2021 Q&A
• Understanding OSHA’s Rules for T&D Equipment Grounding
• Information Transfer: What’s Needed to Protect Affected Workers?
• Who is Your Customer?