Being able to predict what to expect from the Occupational Safety and Health Administration (OSHA) in any given year varies from a crystal ball divination to a precise calculation. Changing administrations and a lack of performance history leave much to the imagination. However, three years into the current presidential administration and more than a year with Assistant Secretary of Labor for OSHA David Michaels, the future with OSHA is a mathematical certainty. One can simply look at that history, the details of OSHA’s $583.4 million proposed budget for 2012 to see where money will be allocated, and the potential effect of legislative cuts.
Stepping back, we can examine Michaels’ track record. Under his direction, the number of inspections increased from 39,004 in 2009 to 40,993 in 2010. The total number of citations issued increased from 87,663 in 2009 to 96,742 in 2010. Of greater significance is the change in the nature of violations. The important aspect worth noting is not just that the total number of violations and inspections increased. It is the breakdown. In 2009, 75 percent of those inspected received citations, while in 2010, 82 percent were cited. Looking at the types of violations, General Duty citations went up by 16 percent from 1,350 to 1,600 in 2010. Willful citations increased by about a factor of four from 401 in 2009 to 1,519 in 2010. Finally, the penalties associated with violations continue to increase. As described in last year’s OSHA Outlook, the administration came up with a different method for calculating penalties. As a result, fines have basically doubled. The average penalty for a serious violation in 2009 and 2010 was about $1,000. In 2011, it is up to $2,000. These statistics paint a clear picture of OSHA’s aggressive posture on enforcement.
Going forward, this pattern seems sure to stay the same. OSHA’s budget request for fiscal year 2012 included approximately $8 million for increased federal enforcement. With this funding, OSHA plans to add 25 more compliance officers and hopes to increase inspections to 42,500 in 2012. Regardless of cuts, OSHA is sure not to allow the decreased funding to have any significant impact on this area.
Penalties also are guaranteed to increase. Compliance safety and health officers (CSHO) have been given explicit instructions to get tough and are being given support from OSHA’s Solicitor’s Office. The litigation tactics are getting more aggressive and settlements harder. When an employer disagrees with a violation, they can meet with OSHA within 14 days of receiving the violation to negotiate. If they are not satisfied, a formal appeal can be filed before the 15th day. In the past, OSHA would work with the employer; instead of fines, the employer would need to provide safety training or equipment to employees. Employers should be prepared to pay the fines and follow through with required training and equipment with no concessions.
Legislative cuts to support state plans amount to about $1 million. However, you can be sure the federal OSHA will expect state plans to maintain standard development and enforcement consistent with federal activity. Employers in these areas should expect the same treatment as in federal states. In fact, Michaels continues to put pressure on the state offices to aggressively enforce. The federal offices set up in 2011 in Las Vegas, Honolulu, Phoenix and San Diego—to provide oversight of state operations—are still in business. There also is greater involvement from national and regional offices. They are looking at citation contests individually as well as the litigation associated with any citations.
Turning to standard development in 2012, OSHA had requested $25.9 million for this activity. The figure represents an increase of $6.4 million over the 2010 enacted level. Of the increase, $2.4 million is to provide resources to continue the development of the Injury and Illness Prevention Program (I2P2) standard. Factoring this in with OSHA’s history, it’s clear I2P2 will continue to move forward, but overall rulemaking efforts will be slow. As noted in previous articles, I2P2 is Michaels’ major focus. It takes a systems approach and sets the stage for OSHA to deal with an employer’s failure to handle any hazard. Progress on other standards may be sacrificed to make way for its continued development.
Looking at the other standards, the Globally Harmonized System (GHS) change to the Hazard Communication standard—guaranteed to come on by September 2011—failed to meet its deadline. Similarly, Silica, Confined Spaces in Construction and the addition of the Musculoskeletal Disorder (MSD) column in the OSHA 300 Log have all been delayed by controversy, the Office of Management and Budget (OMB) review or other bureaucratic snags.
The only rules one can be comfortable in addressing for 2012 are the Cranes and Derricks, the Electric Power Transmission and Distribution, and Electrical Protective Equipment standards. OSHA and the Edison Electric Institute (EEI) reached a settlement on cranes and derricks in 2011. Federal OSHA agreed not to enforce the Cranes and Derricks standard “with respect to digger derrick operations covered by 29 C.F.R. Part 1926, Subpart V.” A proposed amendment of the Cranes and Derricks standard with a permanent exemption should come out this year. The exemption would include digger derrick activities conducted both by electric utilities and electric utility contractors working under Subpart V (For more on the Cranes and Derricks standard, see “Doing the Heavy Lifting” by Jerry Rivera).
The other rules sure to come out in 2012 as final are 1910.269 and 1926 Subpart V. The first rule, 1910.269, will govern general industry work performed by utilities, and 1926 Subpart V will govern construction work by electric line contractors; doing line work will be harmonized. Elements that will most likely be changed include minimum approach distances, mandatory rubber gloves and sleeves for all work, flame-resistant (FR) clothing requirements, and fall protection. This standard also sets critical obligations for “host employers” (i.e., utilities). They may be required to inform contract employers of known hazards covered by the regulation that are related to the contractor’s work and might not be recognized by a contractor or its employees. Utilities will need to provide information about their installation that the contractor needs to know in order to make a hazard assessment. If the utility observes any violations of the regulation, it will need to be reported to the contract employer.
Cooperative programs and compliance assistance can be expected to stay the same or deteriorate in 2012. Even before the legislative cuts, OSHA only proposed an increase of $650,000 for federal assistance and $1 million for state assistance programs. The increase in federal assistance was mostly targeted at expanding efforts to deter and detect worker misclassification by improving the training provided by the OSHA Training Institute (OTI) to compliance safety and health officers. The money to the state assistance would only cover cost of living increases. Considering all that falls under these categories—providing general outreach activities; developing compliance assistance materials to provide hazard and industry-specific guidance for methods of complying with OSHA regulations; providing leadership to assist federal agencies in establishing and maintaining effective occupational safety and health programs; providing training through the OTI to increase the technical safety and health competence of federal, state and private-sector employers, employees and their representatives; administering the OTI Education Centers Program; administering the Outreach Training Program; providing assistance and programs to address the needs of small businesses; providing opportunities to work cooperatively with employers, trade associations, universities, unions and professional organizations to address workplace safety and health issues through the Strategic Partnership Program (OSPP); and administering the Voluntary Protection Program and state On-Site Consultation Programs—there’s little doubt any legislative cuts at all will have a huge impact.
At press time, it was unclear what would happen to the Susan Harwood Grants, which provide for funds to trade associations and other groups for development of compliance-assistance materials. OSHA requested $12 million. The U.S. House of Representatives proposed cuts that offered no funds for grants. However, the Senate version allowed for $10.7 million, the same as the 2010 level. More than likely, the funds proposed by the Senate will be available in 2012.
Of interest is the fact that OSHA did not request any increases to support its safety and health statistics or executive direction activity. Statistics activity provides for the collection, maintenance, evaluation and analysis of inspection and statistical data that support all agency activities, particularly standard development, inspection targeting, technical support, enforcement activities, compliance assistance and program evaluation. Executive direction supports coordination of policy, research, planning, evaluation, internal management, human resources, budgeting, financial control, legislative liaison, federal agency liaison, emergency preparedness and coordination of international safety and health activities. Questions remain as to how these functions can be maintained if no consideration is given to basic operational cost increases. With the focus on enforcement, could this mean further cuts into compliance assistance?
With 2012 being an election year, there is little chance for legislative reform on the horizon. Sen. Patty Murray (D-Wash.,)reintroduced Senate Bill 1166 in 2011. It would expand OSHA coverage, increase whistleblower protections, increase victims’ rights, increase civil and criminal penalties, and address various reporting requirements, and rested its hopes on coordinating with mine safety legislation. While a good idea, the odds of it happening are very low. The bill introduced on the House side has even less hope. Rep. Lynn Woolsey (D-Calif.) introduced it and then announced her intention to retire from Congress after completion of her term.
Bottom line, expect heavy enforcement and larger fines. Moreover, expect OSHA to take advantage of the bad publicity this offers to “shame” employers into compliance. OSHA’s threshold for issuing news releases on citations lowered from $100,000 to $45,000. Other than that, it seems like business as usual in Washington. Michaels will struggle with new standards though the bureaucratic process, as will the legislature in trying to issue OSHA reform. Regardless, we should continue to do business as usual and do our best to provide a safe and healthy workplace for our employees. At the same time, prepare, prepare, prepare for an inspection!
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 and email@example.com.