The past

The past four decades were a period focused mainly on OSHA compliance, with efforts geared to identifying hazards, implementing safeguards and lots of training. Most of the effort was program related, often confusing management and supervision as well as employees.

Lockout, slips, trips, falls, material handling, confined space, PPE, HazCom, and literally dozens of other regulations or safety programs were typically implemented as functional silos – all with their own terms. Along the way, we adopted OSHA recordkeeping as the primary means of tracking performance. The quest to continuously improve OSHA recordable cases for that elusive goal of “zero injuries” was a mantra often heard in the safety community. The question I would pose is, “Gee, what if I get to the top of the ladder and find out I’m on the wrong wall?”

The present

Unfortunately, we still have a strong OSHA focus. We bemoan that OSHA recordables are lagging indicators but do very little to develop new metrics for a more proactive look at things. Enlightened safety pros have moved to a systems approach that integrates the various programs into a cohesive system focused on continuous improvement.

Such systems demand leadership and employee participation and have proven to be successful when properly implemented. Concurrent with systems thinking has been the active use of risk assessment to complement traditional hazards assessment. Tools like task-based risk assessment recognize the realities of the workplace and do not skirt the issues where power must be on, work performed at elevation, etc. Through the application of the hierarchy of controls, risks can be mitigated allowing the work to be performed with acceptable risk. Those using the latest state of the art tools and thinking are making real headway — but still missing the real issue.

The future

The ghost of the future would probably ask, “Why do you folks insist on working on 4% of the problem? Is the “ghost of OSHA past” so strong that you cannot expand your focus and address the 96% of accidental deaths occurring off the job?” This is the real future of safety – tackling the bigger issue without abandoning the occupational focus.

In fact, you’ll find that making safety a 24-7 family driven value can do much to help your in-plant efforts. That is the opportunity. The challenge will come from the strategic initiatives of sustainability and corporate social responsibility that demand a broader focus of efforts geared to the family and society. If safety is not at the forefront, we will be pushed further to the back burner and CEOs will find other means and methods to address these strategic challenges.

Take stock of how you see and practice our profession. Are you in the past, the present or the future? When you climb the ladder of successfully reducing risk, make sure you are climbing the right wall – the wall of safety 24-7.

The significance of that statement is that lockout must be applied to set up (because it is classified as servicing or maintenance) regardless of whether that is the best way to protect the worker involved. And, as in many other areas, OSHA has been ramping up enforcement.

You’ve got to be kidding me. That’s like saying a mechanic must lockout the ignition switch when tuning up my car engine because it’s service and maintenance. By the way, it is service and maintenance of my vehicle, but does OSHA understand that you must have the engine running to set the timing? This is not a safety “shortcut.” It is a requirement of the task — just like the utility worker who must climb a pole in all kinds of bad weather and has potential exposure to very high voltage. Hello OSHA — welcome to the real world of work and risk.

If OSHA maintains its 40-year focus on hazards without moving to risk assessment, we’re all in for a lot of continued anxiety. Forget the impact on Santa Claus (see Jim Stanley’s Dec 23 post on how “OSHA nearly killed Christmas”), employers will have to sprinkle pixie dust to stay in business.

Power often needed for tooling changes

Employees often need power on to make tooling changes on machines like plastic injection molding machines.

Just like tuning an auto engine, this is not a shortcut but a requirement of the task. Small molding machines typically pose very low risk because employees stand on the side of the machine and are protected by passive controls (i.e. control reliable safeguards).

Hello OSHA, have you ever heard of passive controls, the holy grail of good safety design? A passive control is something like an airbag. It works without human interaction. In the case of machines, it might be an interlocked barrier that prevents hazardous motion but still allows necessary power to perform the tool change.

Oh yeah, I forgot, OSHA calls most tool changes “setup.” And because they consider setup to be service and maintenance, it automatically requires lockout. Good grief. This could be a Charlie Brown movie or the ultimate catch Catch-22.

Other safe ways to change tools

On some machines the task of changing tools might be safely performed using engineering controls and a similar task on another machine might require full lockout of the primary energy source.

By the way, with the exception of worrying about compliance, I don’t care if you call it setup or tool change as the term does not define the risk. In many cases, locking out would actually increase risk.

If OSHA’s thinking prevails, we won’t need standards that provide requirements for control reliable safeguards because the answer will always be “lock it out.” The problem, of course, will be trying to enforce what is a ridiculous rule.

Workers are smart people, and they know when management has imposed a rule that won’t let them do the task. That’s when they don’t lock out – and the machine may not have the safeguards that make the task inherently safe. Remember, these are not shortcuts but the situations where you need power to do something and risk assessment shows the work to be safe.

In the aforementioned CPL, page 10 states, “Tagout devices may be used on energy-isolating devices that are capable of being locked out if the employer develops and implements the tagout in a way that provides employees with a level of protection equal to that achieved through a lockout system.”

Time for a change by OSHA

OSHA’s exemption is inconsistent with its strident demand for locks in certain industries, and the exemption recognizes only part of the problem. The protection offered by lockout or tagout deals only with someone restarting the operation that could result in hazardous motion. It’s time for OSHA to provide an exemption for tasks requiring power where the work is performed safely using control reliable safeguards.

No wonder workers often think safety people are goofy. Oh, did I mention that many companies would simply go out of business, or at a minimum discontinue certain manufacturing processes (away go those jobs). Come on OSHA – get with it.

Task-based risk assessment as defined in the ANSI B11, family of general industry safety standards, will give you the answers you need to define acceptable risk – and allow the work to be performed safely. Unfortunately, OSHA’s outdated hazards-based approach falls miserably short. Please contact FDR Safety if you have questions.

How OSHA Nearly Killed Christmas!

Every December, my wife and kids beg me to put Christmas lights on our house, like all the neighbors do. But I cannot for the life of me figure out how to do it in a way that is both safe and affordable, or that does not violate at least 23 OSHA regulations. After all, I’m a safety professional, and I’ve gotta set a good example. So I gave them a made-up story about how our home owner’s insurance policy has a “special rider” that disallows Christmas lights because they’re considered a fire hazard, and that got me off the hook for one more year. But this year, I also began to wonder; how would Santa Claus comply with OSHA regulations? So I did a little research.

Now everyone probably realizes that Santa’s workshop is exempt from OSHA regulations, because it is not located in the United States or one of its territories; it sits on the North Pole at the top of the Arctic, out of OSHA’s jurisdiction. This is made further evident if you watch the animated Christmas special, “Rudolf the Red Nosed Reindeer.” Did you ever notice that the machinery in Santa’s workshop that has no guards installed? All the nip points on the belts and pulleys are exposed to contact, in violation of 1910.219(d). Also, not one single elf is wearing safety glasses or ear plugs as required by 1910.133(a) and 1910.95(b)(1), respectively, in spite of all the sawing, drilling and hammering that is going on! But once Santa gets into the good ol’ USA, things are different; because here, he must comply with OSHA regulations.

It wasn’t until recently that Santa Claus decided that he needed to do a much better job of following OSHA safety regulations, because his workers comp insurance rates were going through the roof. Also, he wanted to avoid the bad press associated with one of those news releases that OSHA started issuing to embarrass “bad actors” with multiple violations. So Santa decided to bring four elves along on his annual Christmas Eve trip to assist him with complying with the OSHA rules.

When Santa landed his reindeer-powered sleigh atop the first roof in the US (somewhere in northern Maine, I believe), he jumped out of the sleigh and started heading over to the chimney when one of the elves shouted for him to “STOP”! It was Sammy, Santa’s first-ever Safety Coordinator elf. “Claus, you have no fall protection”, explained Sammy, “So we’ll have to perform a JSA to figure out the safest way to get you over to the chimney without you falling off the roof”.

Ol’ Saint Nick had only read enough of the OSHA fall protection standards to be considered dangerous, so when he said “Let’s designate one of the elves to be our safety monitor, per 1926.502(h)”, all the elves started snickering. “No can do, Claus”, cried Sammy. “This work is not covered by the construction regs, it falls under general industry. So we’ll have to build a set of guardrails from the sleigh over to the chimney, with 42 inch top-rails, mid-rails and 4 inch toe-boards per 1910.23(c).” “Wait,” declared another elf, “all the hammering will wake the kids inside the house; we’ll have to figure out something else.” So they convened a meeting of the Safety Committee to figure out what to do.

They decided Sammy should use his smart phone to access the OSHA website to look for an alternative. He eventually found an OSHA letter of interpretation that allowed them to use an alternate means of fall protection, such as a properly engineered fall protection system, in lieu of guardrails, as long as the alternate system offered equal or better protection than the guard rails. So Sammy called on Johnny, one of the other elves sitting in the sleigh, to help; Johnny is a RPE (that’s registered professional engineer, not registered professional elf). Johnny designed a fall prevention system for Santa to use, complete with safety harness, lifelines, retractable lanyard, and designated points of attachment that can support at least 5,000 pounds per man attached.

Then Santa slipped on his safety harness (probably one of those special body harnesses designed for “husky” workers), attached his lanyard to the horizontal lifeline, and slowly crept across the roof over to the chimney. But when he started to climb up the chimney, Sammy again shouted for Santa to stop. Seems there was an overhead electrical line running overhead near the chimney, and Santa was about to encroach into the danger zone, a direct violation of 1910.333(c)(3). Because Santa had not been trained as a “qualified person” per the OSHA electrical standards, Sammy called for another elf, Ernie the Qualified Electrician, to install insulators on the overhead electrical line, per the requirements specified in 1910.269, the Electric Power Generation, Transmission, and Distribution standard.

Once that hazardous situation was rectified, Santa attached his double-legged lanyard to a vertical lifeline, climbed to the top of the chimney, and was ready began his decent down into the house. But first, Sammy had to use his gas detector to check for a hazardous atmosphere inside the chimney (confined space). “Too much CO” asked Santa? “Nah, only 15 ppm, so we can set up the blower and then enter under the alternate procedures specified in 1910.146(c)(5)”, said Sammy. Once the blower was in place, Santa started sliding down the chimney.

Halfway down, Santa mumbled something about it being a little warm inside the chimney. “Getting hot” asked Sammy? “Better stop right there, Claus.” Then Sammy pulled out his smart phone again and downloaded OSHA’s new app designed to protect workers from heat-related illnesses. Sammy entered all the necessary data into the program to get guidance on proper procedures to follow; however the app crashed three times before he could finally get it to work. But after several minutes, Sammy finally got the life-saving instructions he needed, and shouted down to Santa; “Claus, OSHA says you need to take a drink of water.”

But Santa never carried a canteen of water on him; he was accustomed to drinking all that free milk that families leave on the mantle with the cookies. So the elves improvised; they put some snow in an old McDonald’s cup they found under the sleigh seat and used their body heat to melt it into drinking water for Santa (an unintentional violation of 1910.141(b), potable water). Of course, that took several minutes, as the elves had difficulty finding snow that was not yellow (it seems that reindeer have small bladders). “Next year”, declared Sammy, “we need to bring a cooler full of drinking water for Claus”. “I prefer Sqwincher”, shouted back Santa. “But not the lemon-lime kind, I like the fruit punch flavor”!

Once Santa and his safety coordinator elf finally made it to the bottom of the chimney, they noticed there were some glowing embers beneath the ash in the fireplace. So Sammy declared that the operation was now considered “hot work”. Santa had to stop work while Sammy filled out a hot-work permit, then he called down the fourth elf, Fred, to act as the designated fire watch. Of course, Sammy had to first make sure that the portable fire extinguisher was fully charged and had its annual inspection tag attached, per 1910.157(e)(3). Then Sammy conducted a quick training session for Fred on the use of the extinguisher, since he was due for his annual refresher training per paragraph (g)(2). And Santa really had to bite his tongue when Sammy reminded him that they would have to wait 30 more minutes after they completed the “hot work”, because OSHA required the fire watch to stick around that long to make sure there were no stray sparks smoldering that could start a fire.

After confirming that all the elements of a fire prevention program were in place, per 1910.39, Sammy pronounced that Santa could proceed with distributing the gifts, just as soon as Ernie finished replacing the electrical plug on the extension cord for the tree lights; it seems the home-owner broke off the grounding pole (1910.304(g)(5)). And finally, after much ado, all the gifts were placed under the Christmas tree. Sammy announced they completed their tasks with no OSHA-recordable injuries or illnesses to enter on the OSHA Form 300, per 1904. So Santa and the elves gave each other high-fives, had a “safety luncheon”, and then everyone headed back onto the roof to load up in the sleigh so they could head to the next stop.

As soon as they were airborne, Santa decided to send a text to Mrs. Clause to let her know he would be running later than normal this year, due to the extra time it took them to comply with all the safety rules. But when Sammy saw what Santa was doing, he quickly snatched the phone out of Santa’s hand and chastised him for texting while driving.

“Claus, didn’t you read the new OSHA Alert about the dangers of texting while driving?” asked Sammy. “You need not worry”, replied Santa, “I’ll be careful. Besides, there’s not even an actual OSHA regulation that says I can’t text while driving.” “True”, said Sammy, “but you do have a General Duty, Claus, to provide us with a place of employment free from recognized hazards!”

(Note: if you did not get that last joke, refer to paragraph (5)(a)(1) of the OSHA Act of 1970).

Under OSHA’s multi-employer citation policy, a “controlling” employer may be cited for violations involving work performed by contractors, even if none of the employer’s own workers were involved. An employer is deemed to be “controlling” based on the degree of authority it has over a worksite and cannot simply contract away its responsibility for safety to contractors.

The policy has major implications for the way that employers manage worksites where contractors are deployed, particularly in the construction industry.

In a decision last week, the Circuit Court upheld OSHA’s actions against Summit Contractors Inc. OSHA cited the company for providing electrical equipment without ground fault circuit interrupters to its subcontractors in violation of OSHA’s Electrical Wiring Design and Protection standard.

To meet these safety responsibilities I recommend that all controlling employers evaluate the degree to which they control the means and methods of their contractors’ work and implement a program to insure that hazards/violations are identified and corrected.

Six steps to address the challenge

Here are some specific steps controlling employers should take.

1. Controlling employers need to review all contractor and subcontractor safety-related documentation, including all safety programs and policies to insure they are current and address specific hazards, such falls, machine guarding, confined space entry, electrical hazards, etc., to which their employees are exposed or are potentially exposed.

2. Controlling employers cannot eliminate their OSHA liability by contract, but contractual language can be written to limit the controlling employers’ responsibility to correct hazardous conditions. Controlling employers must review contractual language to identify the degree of control that it exercises over other employers.

3. Controlling employers on multi-employer worksites must either inspect the worksite itself or require that subcontractors conduct inspections frequently enough so that the subs have the ability to identify and correct safety and/or health hazards/violations.

4. If these inspection procedures are implemented, it is my opinion that the controlling employer will have exercised reasonable care to prevent and detect hazards/violations on the site. Controlling employers are not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable OSHA standards or of trade expertise as the contractor it has hired.

5. Controlling employers must develop a system for subcontractors to monitor their employees, correct hazards/violations and report back to them.

6. The controlling employer must require all subcontractors to immediately report injuries/illnesses to them. The controlling employer must also require that all subcontractors maintain documentation of any worksite injuries or illnesses to their employees, as well any corrective actions that were taken to address any hazardous conditions that led to the injury or illness.

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Under the pilot program, OSHA inspected about 350 workplaces suspected of providing inaccurate reports of workers’ injuries and illnesses. The program was a relaunch of an earlier version that was halted because inspectors failed to find the underreported injuries and illnesses they were expecting.

After all the confusion surrounding the original pilot and its failure to find recordkeeping violations, I have substantial doubt that a new look at targeted companies could really find legitimate accidents and illnesses that were never reported. On the other hand, given the complexities of OSHA’s current recordkeeping requirements, it is possible that some of the injuries and illnesses were recorded improperly.

In my opinion, this pilot program is evidence that OSHA has misplaced its priorities. The agency has limited resources, as do businesses. Instead of splitting hairs about inaccurate recordkeeping, time and attention needs to go towards identifying hazards in the workplace and their correction before injuries or illnesses occur. Everyone agrees that this will produce safer workplaces.

At the Trucking Associations meeting, I was most intrigued by a survey it conducted a few months back that identified the top challenges its members are facing. Not surprisingly, one of the top five issues was the impact the US DOT’s new enforcement program, CSA, will have on carrier operations.

I have written many times before that CSA would become a “game changer” and, in fact, for the trucking industry it has become so. As freight demand is increasing, companies are anxious for more customers. However, companies with poor scores are being told that until they improve, customers will be giving their business to companies that perform better on safety.

At the conference, it was clear that a cottage industry of consultants and businesses has sprung up to help companies identify their safety weaknesses and improve their CSA performance. This help comes in the form of technologies capable of managing hours of service compliance to individual consultants skilled in improving safety culture and a company’s overall safety management program.

The demands of running a trucking operation can be overwhelming but the compliance requirements are the same whether a company has three power units or 30,000. The point is that solutions are available and many are affordable and within the reach of the small operator. To remain competitive, companies need to be mindful of their CSA performance and set a course to make improvements by either focusing time and attention on remedies or hiring someone who can help get them into a better safety position.

Home, community accidents on rise

Unintentional injury prevention is the main mission of the National Safety Council. It focuses on helping business and the public recognize the impact injuries/deaths have on business profitability and the wellbeing of families.

Surprisingly, the fastest rate of increase in preventable injury and death comes from abuse of prescription drugs, aka unintentional poisoning. We have all heard stories of people doctor-shopping, receiving highly intoxicating drugs and mixing drugs that unintentionally and tragically result in death.

In recent decades, workplace and motor vehicle deaths have been declining but home and community categories of death and injury have been on the rise. Other danger sources in the home include slips and falls. The challenge is how to create a better recognition of risk and then promote a sense of personal responsibility for oneself and one’s family that recognizes these risks and sets out to curb them.

Ladder safety, handrails in bathtubs, etc., are examples of measures that enhance safety. Adopting a mindset that says “this event can happen to me so I’m going to improve the odds by making the safe choice” is something we don’t often do. Always wearing a seat belt even when we drive the 10 minutes to the grocery store is a practice we all need to adopt.

These meetings provided me a sense of renewal and commitment to my safety journey and reminded me that there is still a great deal of work to be done to help us all be safer — whether it’s on the road, at our workplaces or in our homes. While we all can’t be at every conference that affirms our vocation, we can commit to making better choices and caring more about our personal and family’s well being.

The incidence rate for healthcare support workers increased 6 percent in 2010 to a level nearly two and a half times that for all private and public sector workers, according to figures from the federal Bureau of Labor Statistics. The number of ergonomics injuries with days away from work increased 10 percent for nursing aides, orderlies and attendants.

OSHA chief David Michaels said the national emphasis program would “increase our inspections of these facilities, focusing on back injuries from resident handling or lifting patients; exposure to bloodborne pathogens and other infectious diseases; workplace violence; and slips, trips and falls.”

The program will cover nursing homes and residential care facilities, such as assisted living complexes.

Operators of these businesses, who may be unaccustomed to intense OSHA scrutiny, may wish to read our article “How to meet the challenge of greatly increased OSHA enforcement,” which provides useful tips.

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OSHA hailed that as good news, and rightly so. But to gain a fuller understanding of the numbers, you need to look at statistics going back a number of years.

These statistics show that the number of illnesses and injuries in private industry have been on a steady decline for years, as shown in this chart created by the government which tracks injury and illness numbers from 1994 to 2010.

That, of course is great news, as well. But it also demonstrates that maybe OSHA’s enforcement crackdown over the last two-plus years hasn’t changed the trend.

What’s ahead for OSHA

In announcing the numbers, Labor Secretary Hilda Solis gave some indications about where the agency will be focusing in the future: recordkeeping, the healthcare industry and public sector employers.

“We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing,” she said.

“Illness and injury rates for public sector workers also continue to be alarmingly high at 5.7 cases for every 100 workers, which is more than 60 percent higher than the private sector rate,” Solis said.

“A report like this also highlights the importance of accurate record keeping.” she said. “Employers must know what injuries and illnesses are occurring in their workplaces in order to identify and correct systemic issues that put their workers at risk. We are concerned with poor record-keeping practices and programs that discourage workers from reporting injuries and illnesses.”

Too much focus on recordkeeping

My concern with this focus is that it prompts employers to expend their limited safety resources on recordkeeping requirements rather than continuing to identify and correct hazards and behaviors in the workplace. A tremendous amount of industry resources are devoted, for example, to trying to determine whether an injury should be classified as first aid, medical treatment or restricted duty. At the same time, OSHA has recently determined that falls from heights is the most violated standard.

I can’t believe that OSHA is expending their limited resources in recordkeeping yet OSHA still has general industry fall protection regulations that are totally inadequate. Somehow OSHA’s priorities have been misplaced.

If that seems wrong to you, I agree. But that is exactly where OSHA is heading with a new directive issued to its inspectors.

It instructs those inspectors how to hold employers responsible under the General Duty clause for instances of workplace violence not even committed by one of the company’s employees.

In an excellent article about the directive in the Washington Examiner, Michael Billock, a labor and employment lawyer at Bond, Schoeneck & King PLLC in Albany, N.Y., creates a hypothetical situation that demonstrates where this could lead:

“Picture this scenario: One day, in a large hospital with thousands of patient visits per year, the unthinkable occurs — while a doctor explains unfortunate news to a patient’s family, a relative pulls a gun and mortally wounds the doctor.

“That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration investigator arrives to conduct an inspection.

“After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.”

Billock goes on to point out that General Duty clause was not intended to be used this way and that the directive provides employers no clue about what to do to avoid a citation.

This is yet another instance of overreaching by the “New” OSHA. Even though the agency appeared to be pulling back earlier this year to some degree on issues like noise, ergonomics and a proposed Injury and Illness Prevention Program, it is now clear that the agency intends to keep its overly aggressive approach in place. Proposals on noise and I2P2 are back and now OSHA is going even further with this misguided approach to workplace violence.

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A spending bill crafted recently by Rep. Denny Rehberg (R-Mont.), chairman of the House Labor, Health and Human Services Subcommittee, would block OSHA from moving ahead on proposals to change the way ergonomic injuries are reported and to create an Injury and Illness Prevention Program.

As reported by The Hill, a Washington publication, Rehberg’s bill drew immediate criticism from the Obama administration and the AFL-CIO.

The ergonomics bill would create a separate column for musculoskeletal injuries on the injury log that employers must submit to OSHA. Business groups have said that this is the first step towards reviving efforts to create an OSHA standard on ergonomics, an effort which failed 10 years ago.

The Injury and Illness Prevention Program – I2P2 for short – would require employers to develop safety programs that conform with specific federal guidelines. Business groups have objected that such a program would be a bureaucratic nightmare, creating guidelines that would not fit well with a wide variety of industries and business conditions.

At a hearing last week, Rep. Tim Walberg (R-Mich.), chairman of the House subcommittee on workforce protections, said that the costs of regulations can be significant and can cause employers to refrain from hiring new workers.

OSHA administrator David Michaels defended the safety regulations, saying, “OSHA regulations don’t kill jobs. They stop jobs from killing workers.”

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