OSHA Not Letting Up on Inspections, Penalties

industrial safety

Despite expectations, Fed-OSHA under the Trump administration has not backed off on enforcing workplace safety regulations.

In fact, the agency is as aggressive as ever and citations are higher than ever as well, after fines were increased substantially three years ago. Based on the agency’s own statistics, a company that’s inspected has only a 25% chance of not receiving a single citation.

In other words, employers should not let up on their safety regimens to not only avoid being cited but also to avoid workplace injuries, which nobody wants.

Here’s what’s going on with OSHA.

Enforcement emphasis still going strong – There are more than 150 local and regional enforcement emphasis programs as well as nine national programs in effect that were implemented at the end of the Obama administration. OSHA is dutifully enforcing them all.

Budget bucks the trend – Despite the budget-cutting at many federal agencies, OSHA saw a $5 million increase in its fiscal year 2019 budget from the year prior. Most notably, that was the first budget increase since 2014. In addition, state-run OSHA programs also received a small budget enhancement of $2 million.

Fines increasing – There has been no attempt to reverse the maximum fines for workplace safety violations. They were increased substantially in 2016, thanks to new regulations that require that the fines be increased every year after to keep up with inflation.

At the start of 2015, the maximum fines were:
• Serious or other-than-serious posting requirements: $7,000
• Failure to abate beyond initial violation date: $7,000 per day the condition continues
• Willful or repeat violations: $70,000

For 2019, the following fines apply (and they increased about 2.5% across the board):
• Serious or other-than-serious posting requirements: Up to $13,260
• Failure to abate beyond initial violation date: Up to $13,260 per day
• Willful or repeat violations: Minimum of $9,472, up to $132,598

Inspections stable – The number of inspections has stayed the same as years prior.

Focus on repeat violators – A continued focus on repeat violations has continued, with 5.1% of all violations in this category. The percentage has been over 5% since FY2016.

General duty clause – There has been continued expansion of the general duty clause to cite employers for heat stress, ergonomics, workplace violence, and chemical exposures below the permissible exposure limit.

New emphasis

And 2018 also saw a new effort by OSHA to fine-tune its work. It issue a memo in May that formalized the use of drones (with the employer’s consent) to collect evidence. This has been somewhat controversial because it could enhance its ability to find other violations it might not normally find.

According to the Fiscal Year 2019 Congressional Budget Justification for the Occupational Safety and Health Administration, increased enforcement seems to be more likely than a decrease. It also seems, although there have been no officially released statements, that the new electronic injury and illness reporting information will be used by OSHA and state plans to increase enforcement.

The increased budget, according to the Congressional Budget Justification, will support additional compliance safety and health officers to provide a greater enforcement presence and provide enhanced technical assistance to employers who need help in understanding how to achieve compliance with OSHA standards.

OSHA Stays Serious About Temp Worker Safety

While the Trump administration has eased off a number of regulations and enforcement actions during the past two years, Fed-OSHA continues focusing on the safety of temporary workers as much as it did under the Obama presidency.

This puts the onus not only on the agencies that provide the temp workers, but also on the companies that contract with them for the workers.

As evidence of its continued focus on temp workers, OSHA recently released guidance on lockout/tagout training requirements for temporary workers. This was the third guidance document released in 2018 and the 10th in recent years that was specific to temp workers.

One reason OSHA is so keen on continuing to police employers that use temporary workers, as well as the staffing agencies that supply them, is that temp workers are often given some of the worst jobs and possibly fall through the safety training cracks.

OSHA launched the Temporary Worker Initiative in 2013. It generally considers the staffing agency and host employer to be joint employers for the sake of providing workers a safe workplace that meets all of OSHA’s requirements, according to a memorandum by the agency’s office in 2014 to its field officers.

That same memo included the agency’s plans to publish more enforcement and compliance guidance, which it has released steadily since then.

Some of the topics of the temp worker guidance OSHA has released since the 2014 memorandum include:

  • Injury and illness record-keeping requirements
  • Noise exposure and hearing conservation
  • Personal protective equipment
  • Whistleblower protection rights
  • Safety and health training
  • Hazard communication
  • Bloodborne pathogens
  • Powered industrial truck training
  • Respiratory protection
  • Lockout/tagout

Joint responsibility

OSHA started the initiative due to concerns that some employers were using temporary workers as a way to avoid meeting obligations to comply with OSHA regulations and worker protection laws, and because temporary workers are more vulnerable to workplace safety and health hazards and retaliation than workers in traditional employment relationships.

With both the temp agency and the host employer responsible for workplace safety, there has to be a level of trust between the two. Temp agencies should come and do some type of assessment to ensure the employer meets OSHA standards, and the host employer has to provide a safe workplace.

Both host employers and staffing agencies have roles in complying with workplace health and safety requirements, and they share responsibility for ensuring worker safety and health.

A key concept is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example: staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.

Successful joint employer relationship traits

  • The key is communication between the temp agency and the host to ensure that the necessary protections are provided.
  • Staffing agencies have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace.
  • Ignorance of hazards is not an excuse.
  • Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at the host employer, what hazards may be encountered, and how best to ensure protection for the temporary workers.
  • The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.
  • And, just as important, host employers must treat temporary workers like any other workers in terms of training and safety and health protections.

For a look at all 10 of the guidance documents OSHA has issued in the last few years, visit the agency’s temp worker page: www.osha.gov/temp_workers/

Cal/OSHA Issues Emergency Rules for Posting Injury Forms Electronically

Financial Figures Data Analyzing

Cal/OSHA is implementing emergency regulations that require California employers with 250 or more employees to submit their 2017 Form 300A summaries electronically by the end of this year. That’s the form that you signed and posted in your workplace from Feb. 1 to April 30.

Form 300A contains only the summary of injuries and is not the actual log, which contains the names of the employees who were injured.

For the electronic filing, you will simply take the same information on the form you posted earlier this year and enter it into an electronic database.

The short ramp-up period will require employers to quickly act to comply with the emergency regulations, which were approved by the state’s Office of Administrative Law in early November. The new regulations were implemented on an emergency basis to put California’s regulations on par with those of Federal OSHA.

Who do the new rules apply to?

The new regs apply to the following employers:

  • Those with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations.
  • Certain employers with 20 to 249 employees in specific industries that are listed in Appendix H of the emergency regulations.

Among the industries in the latter category are:

  • Agriculture
  • Construction
  • Manufacturing
  • A number of retail businesses
  • Transportation
  • Warehousing
  • Health care

You can find a full list of the above industries on pages 8-10 in Cal/OSHA’s emergency regulations: www.dir.ca.gov/dosh/doshreg/Recording-and-Reporting/Text-of-Amended-Regulation-Revised.pdf

Employers that do not have to fill out OSHA logs include:

  • Those that had 10 or fewer employees during the entire year; and
  • Those that have 20-249 employees, but their industry does not fall within the list of “high-risk industries,” as above.

After this catch-up period at the end of the year, all applicable employers will be required to submit their Form 300A electronically every year going forward.

Until Cal/OSHA promulgates new regulations to make that a permanent rule, the agency advises all applicable employers to follow the instructions on Fed-OSHA’s “Injury Tracking Application” webpage: www.osha.gov/injuryreporting/index.html

Cal/OSHA will be implementing its own online tool and when it does, we will notify you.

Do You Have an Emergency Action Plan?

Evacuation plan macro

How would you escape from your workplace in an emergency? Do you know where all the exits are in case your first choice is too crowded? Are you sure the doors will be unlocked and the exit access, such as a hallway, will not be blocked during a fire, explosion or other crisis?

Knowing the answers to these questions could keep you safe during an emergency. And the answers should be readily available to all of your staff in your organization’s emergency action plan (EAP).

Almost every business is required under Occupational Safety and Health Administration standards to have an EAP. The purpose these plans is to facilitate and organize employer and employee actions during workplace emergencies.

Well-developed emergency plans and proper employee training (that helps workers understand their roles and responsibilities when executing the plan) will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies.

A poorly prepared plan likely will lead to a disorganized evacuation or emergency response, resulting in confusion, injury and property damage.

Putting together a comprehensive EAP that deals with issues specific to your worksite is not difficult. It involves taking what you learn from conducting a workplace evaluation and describing how employees will respond to different types of emergencies, taking into account your worksite layout, structural features and emergency systems.

If you have 10 or fewer employees, you may communicate your plan orally. For firms with more than 10 employees, the plan must be written, kept in the workplace and available for employee review.

Although employers are required to have an EAP only when the applicable OSHA standard requires it, OSHA strongly recommends that all employers have an EAP.

Important elements

A few of the important elements of an EAP include:

  • Procedures for reporting fires and other emergencies.
  • Procedures for emergency evacuation, including the type of evacuation and exit route assignments.
  • Procedures for employees who stay behind to continue critical plant operations.
  • Procedures to account for all employees after evacuation.
  • Names or titles of employees to contact for detailed plan information.
  • Alarm system to alert workers.

In addition, designate and train employees to assist in a safe and orderly evacuation of other employees.

Review the EAP with each employee covered when:

  • The plan is developed or an employee is assigned to a new job,
  • Employees’ responsibilities under the plan change, or
  • You change the EAP.

New OSHA Deadline for Fall Protection

Slips, trips and falls are some of the leading causes of workplace injuries. They account for 20% of all workplace fatalities, disabling injuries and days away from work in general industry.

The injuries and risks are so common that four of the top 10 most cited standards by OSHA are related to fall prevention.

With that in mind, you should be aware of changes to OSHA regulations that take effect Nov. 19, 2018. The changes are part of a larger rewriting of the general industry walking-working surfaces standards that took effect in 2017.

Specifically, those rewritten standards:

  • Clarified definitions
  • Eliminated overly specific application conditions
  • Better organized the requirements
  • Simplified general requirements
  • Aligned more closely with the construction standard, and
  • Gave flexibility to use personal fall protection systems in lieu of guardrail systems.

The fixed ladders provision

That said, one area that was left for later implementation was standards for fixed ladders.

Under the revised standard, cages or wells for fall protection on fixed ladders higher than 24 feet are no longer acceptable. However, there are grandfather provisions and a phase-in period for the new provisions:

  • Fixed ladder systems installed before November 19, 2018 must have a cage, well, ladder safety system or personal fall arrest system
  • Fixed ladder systems installed on or after November 19, 2018 must be equipped with a personal fall arrest system or ladder safety system (cages or wells for fall protection are no longer acceptable).
  • When any portion of a fixed ladder is replaced, the replacement must be equipped with a ladder safety or personal fall arrest system.

What’s happening on the ground

OSHA continues to take the risks of slips, trips and falls seriously and continues to focus on some of the most overlooked areas that can contribute to these incidents. The most cited citations in OSHA’s 2017 fiscal year, which ended Sept. 30, 2017, were for general requirements violations, including housekeeping violations (291 citations), followed by 122 citations for clean and dry floors and 53 citations for walkways free from hazards.

The second-most common citation was for failure to protect against fall hazards along unprotected sides or edges that are at least four feet above a lower level, including:

  • 205 citations for unprotected sides and edges
  • 55 citations for fall protection stairways
  • 49 citations for falls – holes
  • 26 citations for falls around dangerous equipment

The takeaway

OSHA continues to police slip, trip and fall violations with gusto. Based on the statistics, you should make sure to keep work areas and floors clear of obstructions and slip and fall risks.

You should also make sure you have protections in place to avoid any unprotected sides and edges.

Preventing Substance Abuse in the Workplace

Drug and alcohol use by employees on or off the job is a troublesome societal plague that has put many employers on the defensive.

Research by the U.S. Department of Labor shows that between 10% and 20% of the nation’s workers who die on the job test positive for alcohol or other drugs.

The same research shows that industries with the highest rates of drug use are the most physically dangerous and involve the operation of machinery, such as construction, mining, manufacturing and wholesale.

With this in mind, you need to know all of the tools available to you as an employer to ensure that you keep a strong drug- and alcohol-free workplace policy in place, while trying to minimize the effects of employees who are heavy users off the job.

An effective policy can reduce the risk of workplace injuries to an impaired employee as well as co-workers and anybody your company may come in contact with, particularly customers or vendors. The actions of one impaired person, or someone that uses heavily off the job, can have far-reaching effects and turn out to be a significant liability for your company.

Various Occupational Health and Safety Administrations (OSHAs) at both the federal and state level offer employers help in sorting out the complexities of putting together an effective drug- and alcohol-free workplace policy.

Federal OSHA outlines five components it considers necessary for a drug-free workplace: a policy, supervisor training, employee education, employee assistance and drug testing.

Drug testing, it says, “must be reasonable and take into consideration employee rights to privacy.”

The federal agency has guidelines available to help resource-challenged small businesses formulate a policy aimed at a drug- and alcohol-free workplace. They include:

  • Drug-Free Workplace Advisor Program Builder. For employers needing to develop a policy from scratch, this guides them through the various components of a comprehensive written drug-free workplace policy. It then generates a policy based on an employer’s specific needs.
  • Substance Abuse Information Database (SAID). This includes sample drug-free workplace policies, surveys, research reports, training and educational materials and regulatory information.
  • Resource directories. These contain current lists of national, state and local resources, including summaries of state laws on workplace-related substance abuse, community organizations that help make businesses drug-free, and help lines for those who have a drug problem.
  • Training and educational materials. These include presentations, articles, fact sheets and posters to help employers provide workplace drug and alcohol education.
  • Workplace Frequently Asked Questions. These are available free of charge.

 

More detailed information for each of the above guidelines is online at: www.osha.gov/SLTC/substanceabuse/index.html

 

The New Zealand example
One good approach to drug and alcohol policies comes from New Zealand. Its OSHA – in simple, practical language – advises employers in that country to:

  • Formulate rules, agreed to by all parties, which apply the same for everyone: employees, contractors and employers.
  • Write the policy clearly and make it available to all in the workplace.
  • Describe steps needed to ensure a drug- and alcohol-free workplace.
  • Enforce the rules “consistently and fairly.”

 

The policy, says New Zealand OSHA, should aim to avoid worker drug or alcohol impairment without discriminating against or punishing employees.

Once formulated, the agency adds, the policy should be part of the company’s official health and management practices in recruitment and training, integrated into its human resources department and widely circulated throughout the business.

 

OSHA Continues Its Focus on Multi-Employer Worksites

OSHA is continuing its focus on multi-employer worksites, and contractors that oversee the work of other employers’ and subcontractors’ workers need to be aware of the long reach the workplace safety agency has.

Having employees who work for multiple employers on the same project or in the same facility is becoming more common. This is true especially in the construction and manufacturing industries, but also anywhere a workspace is owned by one company but filled with multiple contractors, consultants and temporary workers employed in a variety of operations.

Under its “Multi-Employer Citation Policy,” OSHA uses a two-step process to determine which employers it will cite in a workplace.

First, it defines the type of employer each employer on a worksite is:

  • Creating – Creating employers are those whose workers create a hazardous condition that violates an OSHA standard. Employers that create violative conditions are citable even if the only employees exposed are those of other employers at the site.
  • Exposing – Exposing employers are those whose workers are exposed to a hazard on a multiemployer worksite. Only exposing employers can be cited for a general duty clause violation. If the exposing employer created the violation, it is citable as a creating employer.
  • Correcting – A correcting employer is defined as being engaged in a common undertaking on the same worksite as the exposing employer, and responsible for correcting the hazard. The correcting employer can be cited if it doesn’t exercise reasonable care in preventing and discovering violations and does not meet its obligations to correct hazards even if none of its workers were exposed to the hazard.
  • Controlling – Controlling employers are the employers with general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.

 

A single employer may fall into more than one category.

Once the employer is defined, the agency tries to determine if the employer’s actions were sufficient to meet its obligations. If OSHA determines that the employer did not meet its obligations, the employer will be cited.

 

Controlling employers have highest burden

Worksite owners and operators are typically the controlling employers under OSHA policy and carry a higher compliance burden than other employers at the site.

OSHA holds controlling employers responsible for exercising “reasonable care” to prevent and detect violations on the worksite. Reasonable care generally requires:

  • Periodic inspections of the worksite
  • Implementation of an effective system for correcting hazards
  • Effective enforcement of a site-wide safety and health compliance program.

 

Controlling employers are not required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards as the employers they have hired.

 

The final test

If an OSHA inspector finds workers painting the ceiling under exposed, hot wires, which employer would be cited?

In a case like this, three employers could be on the hook:

  • The general contractor – As the controlling employer, the general contractor can be cited for allowing all workers present to be exposed to the hazard.
  • The electrical contractor – The electrical contractor is the creating employer and can be cited for not covering the exposed wiring. The electrical contractor’s employees do not need to be present at the time when OSHA finds the painters working around the exposed wires. The electrical contractor can also be the correcting employer.
  • The painting contractor — The painting company is the exposing employer and can be cited for allowing its employees to work in a hazardous environment.

 

As you can see, it’s not hard for a contractor to be swept up in a multi-employer citation. Knowing where you stand as one of four types of employers, will help you understand your responsibilities to ensure a safe workspace.

Even if you don’t put your own employees at risk, you may be putting the workers of another firm in danger, and in OSHA’s eyes, you are equally liable for any accidents that might occur.