We are sure to see an overall enforcement campaign that addresses ergonomics and more. In the words of Jordan Barab, “Under this new administration, OSHA is heading back to the original intent of the OSH Act. We’re back in the enforcement business.”
As predicted for 2009, there was a major change in the way the Occupational Safety and Health Administration (OSHA) operated. Even though Secretary of Labor Hilda Solis only had an acting assistant secretary of OSHA in Jordan Barab, much took place. Barab made several bold moves to establish momentum in setting up a new OSHA under the Obama administration. In an initial step—one of a more symbolic nature—he removed the pictures of OSHA staff managers from a conference room wall and replaced them with photos of workers who had been killed on the job. These photos are on loan from the family members of the victims of occupational accidents. From an operational standpoint, Barab has had areas within OSHA re-evaluated to improve their efficiency. He has removed quotas for setting up sites under the Voluntary Protection Program and established a budget that will allow the new Assistant Secretary of OSHA, David Michaels, Ph.D., M.P.H., to place OSHA back on track with the business of enforcement and standards writing in 2010.
Michaels was appointed in late 2009. His background and previously expressed views leave no doubt that he will take full advantage of the foundation provided by Barab. Michaels comes to OSHA from George Washington University where he served as an epidemiologist and research professor in the Department of Environmental and Occupational Health. Prior to his academic career, he led the worker health and safety program as assistant secretary of energy for environment, safety and health. While there, he was instrumental in creating the Energy Employees Occupational Illness Compensation Program. In 2007, he testified before the Senate, expressing the following concerns: underreporting of workplace injuries and illnesses, lack of new standards promulgated by OSHA, insufficient use of OSHA’s General Duty Clause as an enforcement tool, and outdated health standards. Going forward, we are sure to see these concerns and more addressed.
To correct the underreporting, $1 million has been budgeted for a National Emphasis Program (NEP) to enhance enforcement and oversight of injury and illness recordkeeping. It is intended to ensure complete and accurate recording and reporting by employers. Under the initial directive, five construction sites were selected as a pilot NEP. Congressional hearings, studies and media reports have all described serious accounts of underreporting injuries and illnesses as well as policies that discourage workers from reporting when they are sick or hurt. Since OSHA feels the construction industry has had a long history of problems with recordkeeping due to its mobile work force, we are sure to see this pilot program expanded further in the construction industry for 2010.
Under the recordkeeping NEP, compliance officers will seek a medical access order prior to the inspection so that they can review medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. Both records stored on-site and at off-site locations, such as medical facilities used to treat employees, are included. Verification will be performed, ensuring that each identified recordable injury or illness is properly entered on the employer’s OSHA Form 300 and OSHA Form 301.
The inspection will also include a number of interviews. The company’s designated recordkeeper will be requested to provide information regarding the manner in which injuries and illnesses are recorded at the establishment. This will determine their knowledge of the OSHA injury/illness recordkeeping requirements. Management representatives will also be interviewed regarding the manner of recordkeeping and whether incentive or disciplinary programs may influence recordkeeping. A subsample of 10–20 employees must be interviewed to identify if there are discrepancies in injuries reported or a disincentive to reporting. The last group of interviews will be staff members who participated in first aid or medical treatment of employees. Their interviews will include questions to determine if management influences medical treatment for the purposes of modifying OSHA recordability.
The 2010 budget includes an increase of $2.2 million to support an additional 20 new employees for development of standards and guidance materials. With the increased funds and staffing, OSHA hopes to accelerate the process in 2010. It plans to take action and complete rulemaking on the more than 20 items in its regulatory agenda. These include new or revised standards, such as Globally Harmonized System of Classification and Labeling of Hazardous Chemicals, Electric Power Transmission and Distribution, Crystallized Silica, Electrical Protective Equipment, Cranes and Derricks, and Confined Spaces in Construction. Each of these could have a significant impact. For example, the globally harmonized system creation would mean changing out all of the current Material Safety Data Sheets (MSDS) and labeling to conform to the new system. Once implemented, employees will need to be retrained to understand the new system.
A topic of extreme significance on the standards front is ergonomics. The 2001 repeal by the Republican Congress of the standard placed doubt on the future of an all-encompassing ergonomics standard. However, OSHA is determined to find a way forward. Given Michaels’ view regarding the insufficient use of OSHA’s General Duty Clause and monies allocated for guidance documents, it is possible there may be a significant increase in General Duty citations for ergonomics. Regardless, we are sure to see an overall enforcement campaign that addresses ergonomics and more. In the words of Jordan Barab, “Under this new administration, OSHA is heading back to the original intent of the OSH Act. We’re back in the enforcement business.”
Several new programs and a revitalization of existing enforcement efforts are on the agenda with the appropriate funding. For enforcement in 2010, OSHA requested 160 new positions and more than $25.5 million. It plans to conduct 40,900 safety and health inspections. This includes 2,200 inspections related to the American Recovery and Reinvestment Act. Of the non-Recovery Act inspections, approximately 30,200 will be safety inspections and 8,500 will be health inspections. Construction inspections will make up 23,400 of the year’s total. OSHA’s inspection emphasis will go deeper than just an increase in the number of inspections. It plans to return to a focus on the worst violators.
Reference has been made to a Severe Violator Enforcement Program (SVEP). SVEP targets enforcement at those employers that fail to protect their workers. It is based on employer history of excessive violations, failure to correct hazards, or having fatalities with serious violation(s) associated with the accident.
OSHA will also continue its site specific targeting (SST). The SST sets up thresholds for companies that exhibit poor rates for days away, restricted and transfer (DART) cases and days away from work cases. Construction is not part of the SST program.
As for the penalties for any violations, employers should be prepared for larger fines. Whether by an act of Congress or through a change in administrative procedures, OSHA will increase fines. From a legislative perspective, the Protecting America’s Workers Act is still live and has an even greater potential for passing under the Obama administration. If it does, penalty limits will be increased, whistleblower protections will be enhanced, prison terms made longer and there will be greater public accountability for safety violations. Workers and their families would have the right to meet with OSHA personnel investigating complaints.
But, even without the act, OSHA will be reconfiguring the manner in which it calculates fines. Under the current system, a fine is levied somewhere between zero dollars and the maximum limits for a given violation based on such factors as probability of a mishap, severity of the potential injury, number of employees, employer good faith, etc. Modifying the application of these factors could drive penalties upward closer to the maximum currently allowed.
On a state level, OSHA will expect state plan states to follow its lead. As a result of deficiencies found in certain state programs, Barab testified to Congress in late 2009 that the federal OSHA would “strengthen the oversight, monitoring and evaluation of all state programs.” In the 2010 budget, projections were offered that show OSHA expects states to increase their inspections from 50,000 in 2009 to 57, 650 in 2010. Of these inspections, 45,100 will be safety inspections and 12,550 health inspections.
This should leave no doubt that OSHA plans to deliver on its promise to return to the mission of enforcement and standards. But, it is not a complete condemnation of its interest in cooperative programs and compliance assistance. It is rather a matter of resources. Funding for compliance assistance has been increased by $721,000. Next to the 0 percent increase in Susan Harwood Grants, which provide funds for programs to train workers and employers to recognize, avoid and prevent safety and health hazards in their workplaces, this represents the smallest increase of all OSHA’s budget items for 2010. Given that limit, OHSA will be looking to stakeholders for help. They consider carefully how each cooperative program fits into their budget and goals before investing any funds. For example, the Voluntary Protection Program will continue, but be streamlined to improve efficiency and, as mentioned, will have no quotas for new sites established.
With respect to training programs, such as the Susan Harwood Grants, the plan is to continue. Unfortunately, with no increase in funds, grantees will need to do more with less. OSHA’s efforts for improvement here are focused on extending the duration of the grants and providing more oversight.
OSHA is looking for a new balance. That balance, as seen by budget and allocation of resources, will weigh heavily on the enforcement and standards. Employers need to be prepared to demonstrate more than effort for improving safety and health. OSHA is looking for results in 2010 and holding employers accountable for failure.
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 by e-mail at email@example.com.