I often hear the horror stories of OSHA experiences. Some are determined to be embellishments of an actual experience, but others justify certain levels of outrage and frustration. I receive a monthly publication listing the results of OSHA inspections conducted in the state of Kentucky. I was just reading the January edition of the publication and thought I would share with you a few findings that help to fuel the feelings people may have against OSHA.
In an event where two employees were killed after anhydrous ammonia was released while repairing a freezer pump, the employer was fined a total of $17,500. Now the interesting part about this is that 29% ($5,000) of the total dollar amount was because the employer did not notify OSHA within eight hours of being aware of the fatalities.
In another situation, OSHA discovered five employees working on a roof 19 feet above the ground with no fall protection that netted (no pun intended) a serious violation of $2,500. So, this could leave one to think that delaying a phone call to OSHA after a fatality is twice as bad as actually exposing employees to a potential death hazard?
I also found an occurrence where not having an emergency eyewash and shower was labeled as a serious violation and was accompanied with a monetary penalty of $4,500, yet the same violation was listed as an “other than serous” with no monetary penalty for another employer.
In a situation with an employee who had a finger amputated, the hazards that caused the amputation were listed as a serious violation and cost the employer $4,500. The employer was then fined $3,250 for not reporting the event within 72 hours. Once again are we saying not reporting the event is almost as serious as the actual hazard that casued the event?
Now this one boggles my mind! Another employer was fined $6,600 due to an employee injury, but the entire monetary portion of the citation revolved around not reporting and not recording the injury. The ensuing OSHA inspection found that the area around a cooker tank was not kept in a clean and dry condition and that the employer did not have proper lockout/tagout procedures in place nor have proper training certification for forklift operators. Total dollar amount for those findings? Zero dollars. Yes, I said zero dollars.
Further down the page, I saw where a little “mom and pop” deli near my house was fined $1,250 for some water on the floor from a leaky roof. So is OSHA telling me grease and oil on the floor around a cooker tank isn’t a hazard but water is?
One of the most frustrating inspection outcomes was when Kentucky OSHA fined a nonprofit charity organization “Methodist Mountain Mission” $250 for a toilet that “did not flush properly”. Based on these findings, I can only assume an improperly flushing toilet is more serious than improper lockout procedures?
Now I don’t pretend to know all the details around these events, but it doesn’t take much to see what could be perceived as significant inconsistencies in enforcement and levels of seriousness. You want to know why OSHA sometimes gets a bad rap? Well, just read.
Note: So they can get back to clothing and finding gainful employment for the poor in the mountains of Eastern Kentucky, I inserted a link to the Methodist Mountain Mission of KY just in case you might like to donate to their OSHA fine fund.
Now that the controversial Dr. David Michaels was confirmed by the U.S. Senate on December 9th, we have two of the most aggressive figures holding the top two positions at Federal OSHA. I expect to see the most ambitious agenda in years for this agency. Honestly, it has already started.
Michaels, an epidemiologist and university professor is the author of Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008) and articles in Science, the Journal of the American Medical Association, Scientific American, and other scientific publications. From 1998-2001, Dr. Michaels served as assistant secretary of Energy for Environment, Safety and Health in the Department of Energy under the Clinton administration.
Michaels and his right hand man Jordan Barab, a former union official and congressional staff member won’t have any moss growing under their feet as they move forward with their direction for OSHA. Barab has already been clearing the trail for the past nine months. The question still remains whether they can push their agenda through vs. the push back they are going to receive from industry groups and others.
Dr. Michaels’ agenda for OSHA will start with an increased emphasis on enforcement and penalties. We have already been seeing this over the last several months, and I predict this will even escalate. His agenda also includes expediting rulemaking procedures.
I expect OSHA to push harder on current rulemaking for beryllium, silica, diacetyl, confined space for construction, cranes and derricks, hazard communication, and combustible dust. Dr. Michaels will also be pushing OSHA to initiate a new rulemaking to mandate employers have standardized occupational safety and health program. A one size fits all mentality. With Michaels occupational health background there will be a renewed focus on industrial hygiene issues, hearing conservation and ergonomics.
From our politicians we will be hearing much more in the next few months about the “Protecting American Workers Act“. Expect some heated debate on the Hill over that one. If passed in its current form we will see even more increases in the dollar amount of OSHA penalties as well as an increase in criminal prosecutions of business owners and senior management.
Acting Secretary of OSHA made a speech today at the Committee of Education and Labor House of Representatives conveying that he believes State Plan OSHA programs need more oversight and need to follow more closely with what Federal OSHA does.
Twenty-seven (27) States and territories operate some level of a state run OSHA program. Twenty-one (21) States and Puerto Rico have complete programs covering both the private sector and State and local governments; four States and the Virgin Islands have programs limited in coverage to public sector employees.
In his speech Barab disclosed that going forward Federal OSHA will require each state to also implement any National Emphasis Program (NEP) promulgated by federal OSHA. Until now states could elect not to follow federal NEP programs. He stated that based on how the state programs react that he may require them to also adopt the most recent NEP to inspect the accuracy of the injury and illness reporting requirements. In his testimony Barab said “Although we did not require the state plan states to adopt this initiative, we have told the states that we believe that it is essential that they do so because accurate reporting is critical to an effective enforcement program”. Then he went on to say “We plan in the future, to make all Federal OSHA NEPs and other similar initiatives mandatory rather than discretionary changes to the states’ programs”.
Barab believes that over a period of the last several years and especially in the mid-1990s oversight of state programs has been reduced. Citing the findings from a recent investigation of the Nevada OSHA program Barab demonstrated frustration with the lack of issuing Willful and Repeat violations during inspections and a need to step up Federal oversight of all state OSHA programs. It was determined that Nevada’s average of programmed inspections with serious violations was 26% compared with 79% for Federal OSHA. Barab believes this to mean Nevada inspectors were either failing to target inspections properly, failing to identify serious violations, or failing to classify those violations appropriately.
Federal OSHA has advised the Nevada program to ensure that all hazards identified during inspections are addressed with the employer through a citation, notification of violation, or some other method. Case files should be reviewed more thoroughly by supervisors, including review of photographs, to find hazards not initially identified. In other words Federal OSHA expects the Nevada program to write more citations.
As a result of the deficiencies identified in Nevada OSHA’s program and a shift in the administrations policies, Barab has notified all State Plans that he will be announcing a number of changes in stronger oversight, monitoring and evaluation of state programs. He has already sent interim guidance to each of OSHA’s ten Regional Administrators encouraging more extensive investigation of potential problems as part of OSHA’s monitoring procedures for all State Plans.
Barab also announced today that OSHA will conduct what he calls Baseline Special Evaluation Studies for every state that administers its own program. OSHA intends for these baseline studies to lead to better program performance and consistency throughout all State Plans.
I am starting to feel like a broken record, and there is probably more than one person out there thinking I am the “Little Boy Who Cried Wolf.” But people I am telling you, I am watching OSHA grow longer and stronger teeth by the day. A few months ago I wrote an article about the potential of a Perfect Storm when it comes to OSHA and the state of occupational safety in this country. Every day I become more convinced that this storm is going to hit. This is not an attempt on my part to generate more clients; rather, it is truly an effort to forewarn business and employers that this new form of OSHA is not to be taken lightly.
In late June, both Hilda Solis (Secretary of Labor) and Jordan Barab (acting Director of OSHA) spoke at the American Society of Safety Engineers conference in San Antonio, TX. There were simple, recurring themes in both speeches: more aggressive enforcement, more regulations, and a take no prisoners attitude. In addition, they fully expect the state programs to follow lock in step with the federal approach to safety.
Here is what we can expect over the next two years:
1. A more aggressive, confrontational OSHA. We have heard the following words several times from Ms. Solis: “fight,” “vigorous,” “protect,” and “negligent.” It is clear to me that she sees this as a war.
2. An increase in inspectors and inspections. Federal OSHA will add 175 individuals to their ranks, namely more inspectors. They plan to increase the number of annual inspections by nearly 17% to 44,000 inspections a year.
3. Higher penalties for violations. This has already started. We have seen a significant increase in Willful and Repeat violations at the federal level in the past six months. Just the other day, Dana Containers was hit with over $300,000 in fines with three Willful citations and one Repeat. In January, Milk Specialties in Wisconsin got nailed for over $1 million. The list goes on and on.
4. New standards will be pumped out of Washington like we haven’t seen in the past 20 years. Combustible Dust, Cranes and Derricks, Confined Space in Construction, a rewritten Hazard Communication Program, Diacetyl, and Ergonomics are just for starters.
5. Every employer who uses incentive programs to promote safety - be warned. This administration, in conjunction with the labor unions, feels that incentive programs promote non-reporting of injuries and focus more on behaviors rather than correcting unsafe conditions. I encourage all employers to reevaluate any of their current safety incentive programs. The question needs to be “could my program be seen as encouraging the non-reporting of injuries?”
6. From a total OSHA reform perspective, expect to see legislation passed and signed into law under the Protecting America’s Workers Act. This bill will allow the Justice Department to seek felony criminal penalties for cases involving serious bodily injury or death. It will not be necessary to prove it was a “willful act” under this new law. In addition, employers will have to “immediately” fix problems identified by OSHA rather than being able to go through the current appeals process.
I will leave you with a quote from Ms. Solis: “Make no mistake about it, the Department of Labor is back in the enforcement business.” It would be prudent for all to take her at her word.
By: Dwayne Towles - Vice President of Advanced Safety & Health, LLC
By now most all of us are aware of the act of heroism by construction worker Jason Oglesbee as he plucked a woman out of the Des Moines River saving her from almost certain death. Many of my colleagues as well as I have been challenged philosophically about this event. Without regard for his own safety Mr. Oglesbee crawled into a set of grade 80 rigging chains and had the crane operator lower him into the water to save the women. I am sure you are aware the outcome was all good. However, it breaks all the rules of crane use and lifting personnel. Now this may sound stupid, but do Mr. Oglesbee and his employer, Cramer & Associates deserve an accommodation or an OSHA citation?
What if he fell from his makeshift chain sling and drowned? What if he and the woman both fell from the crane and died. What if for some reason the crane tipped over and more people would have been killed? Then would this event have been viewed in a different light? Should this employer receive citations from OSHA for doing the wrong thing? Look, I spent the first 15 years of my career in emergency services, I know some times you gotta do what you gotta do. I applaud Mr. Oglesbee for the outcome of his actions. I would be one of the first to cry “foul” if OSHA would now show up and cite Cramer & Associates. But on the flip side, if the crane had fallen, several workers killed then how many would be screaming “where is OSHA, and what are they going to do about this?”
Humor me for just a moment and let’s change this scenario up. Instead of it being water let’s say the lady was found clinging to life in the bottom of a pit that would be classified by OSHA as a “permit required confined space”. A worker throws all the PRCS rules and training out the window and enters the space to rescue the woman. He is overcome, then two of his co-workers go in after him and they all die. Now………….WWOD (What Would OSHA Do)?
What is OSHA going to do? I don’t know. What can they do?
Are they going to investigate and write a citation for what occurred? Wow, if they do can you imagine the backlash? Are they just going to ignore it and turn the other cheek? What message does that send?
More often than not in the course of conversation about my beloved profession the question comes up these days about OSHA , safety, and where it is all headed under the new administration. I have come to the conclusion that my answer is “we are on the verge of a Perfect Storm”. Let me put the factors in motion for you. When the actual Perfect Storm occurred around Halloween of 1991 it was a culmination of three significant weather related events. These events were a low pressure system, a Hurricane, and a high pressure system. I am seeing the same thing today with what is going on with OSHA.
The Low Pressure System - The life cycle of OSHA:
In it’s heyday of the 70’s the agency was new and aggressive and grew to its peak in the Carter administration with almost a “crazed activist” demeanor. During both terms of Reagan and the George H.W. Bush term the agency was still powerful and responsible for such new regulations as Hazard Communication, Control of Hazardous Energy (Lockout/Tagout), Respiratory Protection, and several others.
It wasn’t until the two terms of the Clinton administration that we saw the agency begin to mellow and drift from its origional mission. If you will recall it was Al Gore who proposed a more “mature” OSHA focused around creative partnerships with business and industry and it was only at the midnight hour of the Clinton administration when the poorly written Ergonomic standard was shoved out the door so the George W. Bush administration would have time to kill it, and be blamed for its demise.
Many now refer to OSHA as the toothless tiger and the EPA has significantly upstaged it on the “Fear” meter over the years with a much greater potential of seven figure fines and jail time for business owners and leadership. As OSHA is preparing to turn 40 years old many are calling for a complete overhaul of the organization.
The Hurricane - The Recession:
This current economic downturn has become a storm like many businesses have never seen before. Many were not prepared, or simply hit so hard that no amount of preparation would have protected them from its wrath. Employers are hurting. Many are failing and don’t have the luxury of the government jumping in to prop them up through this storm.
Contrary to what some believe, the majority of employers are not the bad guys. They want to do what is the correct and ethical thing. But in these struggling economic times many have been forced to throw anything they possibly can overboard just to stay afloat. In many instances this may include their occupational safety and health personnel and programs. Right or wrong it was a decision that had to be made. After all, worker’s compensation premiums and OSHA fines are not what is nipping at the business owner’s heels. It is payroll, cash flow, lost sales, and creditors. A close friend and Safety Director for a major corporation made a comment to me the other day that when you are consuming all your financial resources to bail the boat, you are not too concerned about your safe boating certification.
The High Pressure System – Obama Administration:
Enter the “New OSHA” under the direction of Labor Secretary Hilda Solis. Ms. Solis has been an outspoken critic of OSHA for some time and has made it clear under her direction OSHA is about to heat up enforcement and promulgate new standards. In a speech given by Solis in April she made the following statements.
“Under my watch, enforcement of our labor laws will be intensified to provide an effective deterrent to employers who put their workers’ lives at risk. OSHA and MSHA will be about workers — not voluntary programs and alliances.”
Then Jordon Barab, Solis’ pick to run OSHA (for now) who’s opinions and thoughts are easy to find and read due to his five year diatribe on safety, OSHA, and his antipathy toward the republican party on his blog that he calls “confined space“. It is quite possible that he could be the most radical and aggressive OSHA leader since Eula Bingham during the Carter administration. OSHA under Barab has already committed to an increased budget, adding over a hundred new enforcement officers and the rapid development of over a half a dozen new regulations. There is strong congressional action as well that would increase the monetary amount of OSHA fines as well as the likelihood of jail time for individuals for specific OSHA violations.
Convergence:
As these three factors begin to converge I suspect the worst possible scenario. What was once viewed by many as pretty much a toothless tiger is rapidly evolving into a hungry beast with an attitude. Employers distracted by other issues and in a survival mood being caught unaware and unprepared now become the victim of their own ignorance and the changing winds of this growing storm.
I don’t have a crystal ball but from my perspective some of this is pretty obvious. Expect much more aggressive enforcement of OSHA regulations. We are already seeing it on a federal level with more utilization of willful and repeat penalties that are carrying the maximum allowed fines.Look for significant increases in criminal prosecution of business owners and senior leadership when it comes to work place fatalities, catastrophes, and serious injuries. Just a few weeks ago a California business owner was given nine months in jail and ordered to personally pay nearly $250,000 in restitution due to two workers falling through skylights during roofing work. I am afraid these types of stories are going to become more commonplace when employers are forced to make hard decisions in order to keep their business afloat as they stretch their resources even thinner. If businesses don’t have the capital then they can’t replace aging machinery and processes, they will be forced to cut back on preventive maintenance, personnel, equipment and training. We will begin to see more catastrophic events such as the ConAgra explosion in North Carolina, the ammonia leak in Kentucky and many others.
Expect to see new regulations in relative short order. These will include Occupational Exposure to Crystalline Silica, Occupational Exposure to Beryllium, Methylene Chloride, Occupational Exposure to Diacetyl, Confined Space in Construction, Cranes and Derricks in Construction, Ergonomics, and Combustible Dust. This will stretch employers even further as they struggle to implement these new programs. Are they necessary? Probably some, but I fear the current administration is going to be the preverbal “Bully in the Playground” and the scene is not going to be pretty.
On top of all of this, when you look at where workers are really getting killed while in the work environment, 57% of the occupational fatalities in 2007 occurred in either auto or transportation related events; or due to homicide or other workplace violence events. OSHA has no regulations for either of these, nor are they in the hopper for rule making. I ask why? As an example the OSHA standard for powered industrial trucks does not specifically require the operator to wear a seat belt or other restraint device.
Don’t bother to contact me and tell me OSHA can and does cite for powered industrial truck operators who don’t wear seat belts. I know they use the general duty clause. My point is it’s not in the standard.
Outcome:
Some will not survive the storm. A few business owners will be put out of business and made an example of, with costly fines and prison time. Some will throw up their hands in defeat and either sell the company or close their doors for good. A number will take the risk, do nothing and slip under the radar screen, at least for a while. There is also a number with superior safety and health plans who are basically in compliance already. The vast majority will go to great pains and expense to achieve compliance the best they can.
After all this, I predict we will see little decline in the overall injury and fatality rates over the next several years but a lot of casualties along the way.
This commentary presented by Dwayne Towles Vice President of Advanced Safety & Health. To receive our monthly electronic safety newsletter click here and scroll to the bottom right corner of the page.
