In the words of the Occupational Safety and Health Administration (OSHA) “Enforcement remains focused, active, and effective.” In 2006, OSHA performed 38,579 inspections in federal plan states alone. OSHA hopes to meet or exceed this goal for 2007. The result is a consistent downward trend in occupational injuries, illnesses and fatalities. However, in comparison, there are more than 700,000 construction employers in the United States. Considering federal inspections of contractors amounted to only 15,159 and only 811 of these were electrical contractors, how is enforcement effective? The response may lie in a focused effort.
OSHA has implemented a number of programs to focus on the most hazardous industries and/or serious violators. These include the site specific targeting (SST), local emphasis programs (LEPs), national emphasis programs (NEPs) and the enhanced enforcement program (EEP). Each establishes procedures that allow OSHA to target those employers for programmed inspections. Programmed inspections are those scheduled as the result of a selection process, rather than due to a referral or event such as a reported fatality.
The SST focuses on employers (other than construction) with a high rate of injuries and illnesses. It uses information taken from the OSHA Data Initiative of the previous year. The Data Initiative is OSHA’s Annual Survey, a nationwide collection of specific injury and illness data from approximately 80,000 establish-ments. For 2006, employers with days away, restricted or transferred (DART) rates above 12.0 or days away from work injury and illness (DAFWII), case rates above 9.0 made the list. This amounted to approximately 4,250 sites.
In general, construction is considered a high-hazard industry. Inspection targeting for this industry is based on OSHA’s Construction Inspection Targeting System (C-Targeting). This system relies on information available on construction project starts from F.W. Dodge Division of McGraw-Hill to generate random lists of projects to be inspected. It also uses estimated construction project durations to get compliance officers on-site when projects are between 30 percent and 60 percent complete. The intent is to be there when the greatest number of employees and contractors are expected to be on the construction site.
Since OSHA’s resources limit programmed inspections of construction to approximately 5 percent of the projects started each year, the system allows targeting by selecting different project data. Sites can be limited by end-use, type, dollar value, number of stories and type of owner. An Area Office/State Plan State can specify criteria to exclude categories of projects. A monthly random sample of inspection sites that meet the requested criteria are then provided to that office.
The selection of construction sites also can be limited through the local emphasis and national emphasis programs. These programs are based on knowledge of industry hazards or industry injury/illness experience. A list of sites to be inspected in a particular industry or affected by a given hazard is generated. National programs include inspection criteria to help target employees at risk for silica and lead exposure. The number of LEPs is quite large and varies by OSHA region. A list of LEPs by region that may be of significance to electrical construction is provided in Table 1.
The EEP targets employers who have a history of the most severe safety and health violations. The focus is on employers who willfully and repeatedly expose their employees to the most serious hazards, refuse to correct violations and violate their safety and health agreements. Employers who find themselves in an EEP are ones involved in a priority enforcement case (PEC). A PEC is defined as one that involves the following:
Sites involved in an EEP are subject to follow-up inspections, inspections of other workplaces and more stringent settlement provisions.
As noted, all inspection targeting deals with programmed inspections. Programmed inspections represent 55 percent of all federal inspections (21,503). Other inspections result from unprogrammed causes such as fatalities, complaints and referrals. OSHA conducted 17,703 unprogrammed inspections. Of these, 1,081 were fatality investigations, 7,376 complaints and 5,019 referrals. Of significance is the increase in the number of referrals. The number of inspections OSHA performed due to referrals from other governmental agencies increased by 12.9 percent from 2002 to 2006. This means, for example, an employer inspected by a wage-and-hour-enforcement officer may be more likely to get a visit from OSHA.
Focusing on who to inspect is not the only strategy to improve workplace safety. OSHA also has implemented a citation strategy. The focus is on more hazardous violations and increased penalties. In its annual enforcement report, OSHA highlighted its success by referencing the number of significant enforcement actions. A significant enforcement action is an inspection that resulted in a total proposed monetary penalty of more than $100,000. Statistics comparing the number of violations also demonstrates the emphasis on the degree of violation. From 2002 to 2006, all types of violations increased except the category “Other-than Serious.” These violations decreased by 8.9 percent. In contrast, serious violations increased by 13.9 percent, willful by 44.7 percent and repeat by 36.6 percent.
More specifically, the average violation in the electrical construction industry carried a penalty of $553 in 1996 as opposed to $626 in 2006. This represents a 13.2 percent increase in the average penalty to electrical contractors. In terms of dollars and the average for violations in general, this may not seem significant. However, it needs to be placed in perspective. Looking at the degree of violation for a given hazard tells a different story. Electrical contractors received 33 citations for violations of the Hazard Communication (chemical safety) Standard 29 CFR 1910.1200, resulting in $2,836 in penalties, an average of $85 per citation. On the other hand, there were 70 citations for General Requirements—Electrical 29 CFR 1926.416 protecting employees from exposed electrical circuits that resulted in $130,469 in penalties, an average of $1,864.
It should be noted that the top two violations based in Table 3 are for violations for Subpart V Power Transmission and Distribution. This standard recently was revised to be more compatible with the procedures found in the General Industry Standard 1910.269 Electric Power Generation, Transmission, and Distribution. And, the sixth-ranked violation in Table 3 refers to the General Duty Clause. The General Duty Clause comes from the OSH Act. It states, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” The hazards to which this violation relates may vary. Employers need to ensure a safe workplace regardless of the hazard. The OSHA standards merely set the minimum requirements for safety.
The future of OSHA enforcement remains the same. U.S. Secretary of Labor Elaine L. Chao stated in a press release related to the 2008 budget that “The president’s budget will allow us to continue our record-setting enforcement of worker-protection laws.” OSHA’s 2008 budget calls for an increase in funding by $17.9 million, for a total of $490.3 million. It includes money for 89,700 federal and state safety and health inspections. The focus will be high-hazard industries that typically employ large numbers of non-English-speaking workers. EC
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or firstname.lastname@example.org.