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Occupational Safety Blog

By Fred Rine, CEO of FDRsafety and former long-time Managing Director of Safety and Health at FedEx, Jim Stanley, President of FDRsafety and former No. 2 at OSHA headquarters and Mike Taubitz, Senior Advisor to FDRsafety and former Global Safety Director for General Motors.

Archive for the ‘Enforcement’ Category

OSHA overturned on employer knowledge of scaffolding hazard

April 23rd, 2014 posted by Jim Stanley

Jim Stanley

The Occupational Safety and Health Review Commission recently overturned an OSHA citation that partly revolved around the issue of whether an employer should have known of a hazardous condition that resulted in a scaffolding accident.

As noted in a client bulletin from the Sassaman consulting firm, the case involved scaffolding that was not fully planked when used on a demolition job. OSHA issued a citation on the grounds that the employer should have known about the condition through the exercise of due diligence.

But the Review Commission turned back that argument, saying that “that there is insufficient evidence to show that the condition was present for a long enough time that the employer should have known about it”.

SEIU uses new opening to go along on OSHA inspections

April 9th, 2014 posted by Jim Stanley

Jim Stanley

OSHA last year cleared the way for union representatives to accompany OSHA compliance officers on worksite inspections even if the union doesn’t represent the company’s workers, and now the consequences are being felt.

Representatives of the Service Employees International Union have accompanied OSHA inspectors on at least three visits to worksites where employees of Professional Janitorial Service were working, according to an article by attorneys Brad Hammock, Henry Chajet and Mark Savit of Jackson Lewis.

OSHA’s February 2013 letter of interpretation said that not only could a union representative be selected to go along on an inspection, but that workers had the right to choose anyone they pleased to act as a representative, including non-employees.

The letter also said that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, non-employee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.

All this potentially provides an opening for union organizers to get a presence in a non-union workplace.

In the case of Professional Janitorial Service, the company is the largest non-union janitorial service in Houston and has been at odds with SEIU for the past seven years


OSHA focusing on increased fatalities on communication towers

March 19th, 2014 posted by Jim Stanley

Jim Stanley

OSHA is expressing concern about an alarming increase in the number of deaths resulting from work on cellphone towers and is pointing to fall protection problems as a major contributor.

In a letter to companies in the communication tower industry, OSHA Administrator David Michaels said the fall protection lapses are occurring because “either employers are not providing appropriate fall protection to employees, or they are not ensuring that their employees use fall protection properly.” In 2013, 13 workers in the industry died at worksites, more than the two previous years combined.

Michaels called on the communication tower companies to train incoming workers, make sure they are provided with fall protection equipment and insure that workers actually use the equipment.

OSHA will consider citing companies for willful violations where the equipment is not provided or not used properly, Michaels said.

OSHA inspectors will be examining contracts “to identify not only the company performing work on the tower, but the tower owner, carrier, and other responsible parties in the contracting chain,” the letter said.

OSHA pressuring Cal/OSHA on repeat violations

February 24th, 2014 posted by Jim Stanley

Jim Stanley

Last spring, the U.S. Government Accountability Office took OSHA to task for failing to adequately supervise states that have chosen to retain responsibility for their own occupational safety and health regulation.

OSHA pledged to do better and has increased its oversight. As the law firm Jackson Kelly recently reported, the fallout has been felt in California, which has its own OSHA. The issue concerns the way that Cal/OSHA defines a repeat violation. Under California rules, to be considered repeat, a violation must occur again at the same facility within three years. For businesses without a fixed facility, such as a construction company, the repeat violation has to occur within the same Cal/OSHA region.

Federal OSHA has a different approach and will issue a repeat violation if an employer has been cited for the same or substantially similar hazard anywhere within federal jurisdiction within the past five years.

“Federal OSHA is pressuring Cal/OSHA to align with the federal repeat criteria and base a repeat classification off prior violations statewide,” according to Jackson Kelly. Cal/OSHA is holding a public hearing on the issue, but has not yet proposed a regulatory revision.

Administrative law judge rules against OSHA on enterprise-wide abatement

November 8th, 2013 posted by Jim Stanley

Jim Stanley

An administrative law judge has fired what may amount to a legal “shot across the bow” at OSHA, ruling that the agency has been overstepping its bounds on the issue of enterprise-wide abatement.

OSHA has been contending since 2010 that when a violation is proven at an employer’s worksite, the Occupational Safety and Health Review Commission can require the employer to abate similar hazards at its other worksites, even if they were not part of the citation.

OSHRC Administrative Law Judge William Coleman ruled in the case Delta Elevator Service Corp., dba Delta Beckwith Elevator Co. that there was “no commission or other precedent” to support OSHA’s position.

However, Attorney Stephen Yohay of Ogletree Deakins noted in a recent article about the ruling that the administrative law judge’s ruling does not set a precedent under OSHRC law.

Given that, Yohay wrote, “Having openly touted the merits of the theory, it will be interesting to see now if OSHA exposes its statutory argument to examination by OSHRC, and perhaps a federal appellate court” and risk a precedent-setting decision against its stance.

Companies’ voluntary audits now being used against them

October 4th, 2013 posted by Jim Stanley

Jim Stanley

What appears to be a new OSHA practice of using a company’s voluntary safety and health audit as a guide to identifying possible hazards to focus on in an inspection should prompt employers to review their procedures for these audits.

For many years, OSHA has had a final policy in effect which said that the agency would not use the voluntary audits to guide inspections. However, in a recent Review Commission decision evidence surfaced demonstrating that OSHA had done just that.

An article by attorneys Mark S. Dreux and Matthew C. Thorne of Arent Fox describes what happened in the case of Secretary of Labor v. BP Products North America, Inc. et al., which involved three citations issued in 2010 stemming from an inspection under OSHA’s Petroleum Refinery PSM National Emphasis Program.

“Despite being ‘troubled’ by OSHA’s ‘blatant contravention’ of its Final Policy, the Administrative Law Judge permitted the evidence, in effect, condoning the practice for future use,” the article said.

The attorneys advise that voluntary audit reports “should be written carefully on the assumption they will become a public document that OSHA may request and review.” They also suggest considering whether to engage outside counsel to conduct the audit under privilege.

This new approach is just one more example of OSHA cutting off its nose to spite its face by erecting barriers to voluntary safety and health programs by good employers, which are one of the best ways to achieve a safe workplace.

Manage Safety Risk – Get a “2 Fer”

September 27th, 2013 posted by Jim Stanley

Jim Stanley

Our guest blogger today is Mike White, a new senior advisor for FDRsafety who comes to us after a great career at GM, where he was most recently Global Safety Director.

Let me explain the title and the premise of this blog.  If you manage for risk, you also manage for compliance.  However, if you manage for compliance, you may overlook risk and hazards that result in serious or fatal injuries.

I recently retired from General Motors where I spent the last part of my career as Global Safety Director.  Prior to that position, I was co-director of our joint efforts with the UAW. I spent more than 30 years in operations before going into safety and wondered, “How did I get here?” In both safety positions, I reported to operations executives. It didn’t take me long to appreciate the wisdom of fully integrating safety with daily operations. Thankfully, the groundwork to manage risk within GM and our joint process had been laid.

I’ll share with you my learning and experiences of why managing risk gets you a “2 Fer.” Most safety professionals are aware that OSHA, by mandate, is a violations-based approach. Identification and mitigation of violations is necessary but not sufficient. You must obviously do those things required by OSHA, but that alone will not eliminate injuries, especially those associated with non-routine tasks.

Risk assessment allows workers to assess the exposure to hazards for both routine and non-routine tasks. Let’s say that a maintenance worker is called to fix a machine where parts are not locating properly during machining or assembly. That worker may have to stand in a designated safe place inside an interlocked perimeter guard and observe the machine in full automatic mode.

Upon diagnosing what is thought to be the problem, the worker will identify a pre-task plan to repair the machine in a safe way, lockout the machine and make the necessary repair. Obviously, if there is no safe position from which to observe the machine or perform the task we have a different challenge.You must obviously do those things required by OSHA, but that alone will not eliminate injuries, especially those associated with non-routine tasks.

What happens with a violations-based approach

If you take a purely violations based approach, as OSHA does, it’s typical to find a rule that says, the worker cannot, under any circumstances, be inside the guard with power on. That’s like telling your mechanic that he/she cannot have your automobile engine running to perform diagnostic work. Good luck with that. Workers know when safety rules do not allow them to perform their jobs, and they usually circumvent or ignore the rules to get equipment running.  I’m not talking about shortcuts for expediency. I’m talking about jobs that cannot be performed because our philosophy and designs of machines and guarding emanate from violations-based thinking.

The other benefit of managing risk is enabling the identification of situations that we never see because they could be on off shifts or are in those remote locations where maintenance or other periodic tasks might be performed.  Asking a worker, “If I was a family member who just hired in, what job (whether daily, weekly or annually) might seriously injure me?” You will find that kind of information typically does not show up in our housekeeping or OSHA audits.  Workers don’t have to be experts to understand the fundamentals of risk.

Lastly, traditional safety terms and programs make both workers and executives glaze over.  Risk, on the other hand, is the language of business and the common hinge for all safety programs. Whether safety, business risk, insured risk, market risk, etc., top management understands the fundamentals of risk without a prep course.

In summary, manage risk and get the “2Fer” of managing both risk and compliance.

SVEP not living up to its billing

September 11th, 2013 posted by Jim Stanley

Jim Stanley

One of OSHA’s key enforcement initiatives is the Severe Violators Enforcement Program, which the agency says identifies employers who are indifferent to workplace health and safety and subjects them to enhanced settlements and follow-up inspections.

But how effective is this program, really?

OSHA’s white paper on the subject, published earlier this year, said the program was “off to a strong start” in its first 18 months. Besides imposing extra penalties on “indifferent” employers and subjecting them to follow-up inspections, SVEP is effectively “targeting high-emphasis hazards (and) facilitating inspections across multiple worksites,” according to the white paper.

But Eric Conn, who leads the OSHA practice at the Epstein Becker Green law firm, has written an article for the Washington Legal Foundation that offers a much different assessment.

“Despite OSHA’s claims … careful scrutiny of the data available regarding the SVEP casts doubt on the program’s effectiveness and reveals several glaring problems with how the SVEP is being administered. Most notably, the Severe Violator Enforcement Program:

“1. Disproportionately targets small employers with enforcement rather than compliance assistance;

“2. Provokes more than four times as many legal challenges to the underlying citations as compared to the average OSHA enforcement action;

“3. Encounters significant obstacles in the execution of follow-up inspections of SVEP – qualified employers; and

“4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted (i.e., the program is not capturing recalcitrant employers).”

The SVEP is just one more example of an enforcement program gone off the tracks. OSHA should take Conn’s critique seriously.

3 myths about permit-required confined spaces standard

August 19th, 2013 posted by Jim Stanley

Jim Stanley

OSHA’s standard for permit-required confined spaces is complex, but surprisingly misconceptions have persisted about three fairly easy to understand aspects of the standard.

Curtis Chambers of the OSHA Training Blog zeroed in on these myths in a recent post. Here are the three he identified:

1) “This standard does not apply to me because I do not have any confined spaces at my facility.”

2) “This standard does not apply to me because I have no employees who will be entering a permit- required confined space.”

3) “I have no obligations under the OSHA confined space standard because I hire outside contractors to perform all work inside permit-required confined spaces at our facility.”

To learn more about these myths, read the OSHA Training Blog.

What OSHA needs to prove about an alleged violation

August 15th, 2013 posted by Jim Stanley

Jim Stanley

A recent appeals court decision provides an excellent reminder of information that all employers should be aware of when it comes to OSHA enforcement.

When OSHA cites a company for an alleged violation, the following four requirements must be met if the violation is to stand:

1) That the regulation applied to the circumstances at hand;

2) That the regulation was violated;

3) That an employee was exposed to the hazard that was created; and

4) That the employer “knowingly disregarded” the Act’s requirements. That means the employer either knew or, with the exercise of reasonable diligence, could have known, of the violation.

These tests must be met for every alleged violation contained in the larger OSHA citation.

While there is nothing new about these requirements – they are part of the OSH Act – it is easy sometimes to overlook critical basic principles amid a barrage of detailed additional information. With these principles firmly in mind, it will be easier for companies to know whether they have the basis to challenge a violation.