By Jim Stanley, president, FDRsafety
When Labor Secretary Hilda Solis warned business last year that there was ”a new sheriff in town,” she wasn’t kidding — the Occupational Safety and Health Administration (OSHA) is packing big new six-guns. The only problem is that it may be shooting itself in the foot.
OSHA has been announcing new enforcement initiatives in rapid-fire — from administrative changes that will triple or quadruple the average penalty to increased ergonomics enforcement to the creation of a Severe Violators Enforcement Program. OSHA Director David Michaels even said he would like to see some OSHA violations be treated as crimes, with potential prison terms for those convicted.
But reports from the field indicate that the big enforcement push is having an unintended consequence — more citations are being contested and tied up in the administrative process. That bog-down also results from some apparent changes in OSHA practices that have gotten less attention than some of the big initiatives.
OSHA area directors appear to be doing less negotiation at the informal conferences. As a result, inappropriate citations/violations aren’t being amended or withdrawn. This approach naturally creates an “us-versus-them” atmosphere that inhibits cooperation between OSHA and businesses to improve workplace safety and health.
Audio Conference: OSHA Contractor Crackdown: How Employers Can Avoid Violations and Mega-Fines
Major New Initiatives
Here’s a quick review of major OSHA initiatives since the new administration came into office:
Record keeping. OSHA is cracking down on record keeping and not just for businesses with high accident rates. It’s also scrutinizing businesses with lower-than-average rates, suspecting that their books may be cooked.
Contractor Safety. A federal appeals court decision last year affirmed OSHA’s authority to issue citations to controlling employers for safety problems created solely by subcontractors working on their sites.
Severe Violators Enforcement Program. OSHA will focus increased attention on employers that have demonstrated “indifference” to workplace safety obligations through willful or repeated violations or for failure to abate previously issued violations. Once an employer is placed in the Severe Violators Enforcement Program, OSHA may conduct enhanced follow-up inspections and inspections at the employers’ other work sites around the country.
Increased Penalties. OSHA has made changes in administrative procedures that could significantly increase the average penalty. It is also dramatically increasing the issuance of “egregious” violations, which allow a penalty to be assessed for each occurrence of a problem or each worker affected, potentially resulting in “mega-fines.” (Though in an interesting development for people in my profession, OSHA area directors will be authorized to offer an employer with 250 or fewer employees a 20 percent penalty reduction if it agrees to retain an independent safety and health consultant.)
Training. OSHA is changing its enforcement approach on training. The agency is instructing its compliance officers to issue “serious” citations if a “reasonable person” would conclude that required training has not been provided to employees in a format that they are “capable of understanding.” There is no guidance about how to determine what a “reasonable person” would think.
Illness and Injury Prevention Program. OSHA is proposing that every business in its jurisdiction be required to have a safety and health program. But the agency apparently intends to lay down detailed specifications for those programs, which would be counter-productive. OSHA can’t come up with a set of specs that will work well in a wide variety of work environments.
Increased Ergonomics Enforcement. OSHA is tightening enforcement on ergonomics under the General Duty Clause. It also is proposing a requirement that musculoskeletal disorders be reported in a separate column on the required OSHA Form 300 accident/illness log. There has been speculation that the agency is planning to make another attempt at creating a specific set of standards on ergonomics. Its previous attempt was killed by Congress about 10 years ago.
Heat Turned Up on State Programs. States that choose to do so may set up their own occupational safety and health enforcement programs instead of having OSHA operate in their boundaries as long as the standards are at least as tough as those imposed by OSHA. The Wall Street Journal reported that OSHA is turning up the heat on those state programs.
5 Things Employers Can Do
So what’s a business to do in the face of all these enforcement initiatives? Here are five basic steps to take:
- Make sure all your accident records are in order.
- Make sure you are doing all the training you committed to in your company safety plan.
- Analyze previous accidents to see where you need to improve procedures.
- Conduct a mock OSHA audit, or have a consultant do it for you.
- Go the extra mile — make sure your safety program goes beyond the bare minimum. Promote a safety culture. As part of that, you may wish to conduct training that helps workers understand why they need to act safely instead of just following rules because they are rules.
Jim Stanley leads the audio conference titled “OSHA Contractor Crackdown: How Employers Can Avoid Violations and Mega-Fines.”