Safety Consultants    1-888-755-8010    info@FDRsafety.com

T: 1-888-755-8010
E: info@FDRsafety.com

 

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 ‘OSHA’ Category

« Older Entries
Newer Entries »

Employers may have more room to appeal willful violations

December 19th, 2012 posted by Jim Stanley

Jim Stanley

What’s the difference between a willful OSHA violation and a serious one?

One answer: About $63,000 in penalties – the maximum for a violation classified as serious is $7,000, while the maximum for a willful violation is $70,000. With multiple violations possible in each citation, those numbers can grow quickly.

And now a ruling by the Occupational Safety and Health Review Commission could encourage more companies to appeal willful citations in hopes of having them reduced to serious.

A serious violation is one in which there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A willful violation is one committed with either an intentional disregard of, or plain indifference to, OSHA regulations.

In May, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious.

As related by Safety News Alert, the fines stemmed from an October 1993 incident in which a Dayton Tire employee in Oklahoma City died from injuries suffered when a machine activated unexpectedly.

What had been $1.975 million in fines for lockout/tagout violations dropped to $197,500, a 90% reduction.

The U.S. Court of Appeals, D.C. Circuit, had ordered the commission to reconsider the gravity of the fines because it said Dayton Tire made some effort to comply with the OSHA lockout/tagout regulations, so the violations weren’t willful.

“It takes a lot to be plainly indifferent” to OSHA regulations, the DC Circuit Court wrote in its opinion.

A stronger basis to contest

Now, in a blog post, attorney Shannon Young of Harmon & Davies writes this decision “gives employers an even stronger basis from which to contest willful OSHA citations.”

“What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a willful violation,” Young wrote.

An administrative law judge for the Occupational Safety and Health Review Commission appeared to be following that same logic in a second case. The judge ordered that a willful citation issued to a construction company be reduced to serious because the supervisor at the trench site was “inexperienced, uninformed and confused about how to protect employees.”

“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”

Subscribe to this blog to receive Jim Stanley’s updates about OSHA in your inbox or on your reader.

Posted in Enforcement, OSHA | No Comments »





8 Members of Congress protest OSHA handling of PPE

December 10th, 2012 posted by Jim Stanley

Jim Stanley

OSHA has drawn the ire of eight members of Congress who are objecting to what they say was “improper rulemaking” in requiring flame-resistant clothing to be worn in almost all servicing of oil and gas wells.

The issue goes back to March of 2010 when OSHA issued a memorandum which it said was intended clarify its policy about the use of personal protective equipment in oil and gas operations.

In June of this year, an administrative law judge from the Occupational Safety and Health Review Commission overturned a PPE citation to Petro Hunt LLC for failure to wear flame resistant clothing. Judge Patrick B. Augustine said that the memorandum constituted a new standard and that OSHA engaged in “improper rulemaking under the aegis of an enforcement standard.”

According to the eight Congresspeople, OSHA told an oil and gas association that it did not intend to appeal the decision on the citation, but that it did not agree that it was engaging in improper rulemaking.

OSHA continues to issue citations in keeping with the policy memo, the congresspeople said in a letter to Labor Secretary Hilda Solis dated Oct. 24, 2012.

The letter said that OSHA should have gone through proper rulemaking procedures rather than just issuing a memo. The letter asked Solis to do one of three things:

  • Appeal the ruling of the administrative law judge so the issue can be resolved.
  • Complete a formal rulemaking on the issue
  • Rescind the memorandum.

 Subscribe to this blog and receive Jim Stanley’s posts about OSHA in your inbox or on your e-reader.

Posted in Courts, Enforcement, OSHA | No Comments »





Why ANSI Z10 is better than I2P2

December 5th, 2012 posted by Mike Taubitz

Mike Taubitz

I’m a long-time proud member of the Accredited Standards Committee that developed and recently updated ANSI Z10, the U.S. National Standard for Occupational Health and Safety Management Systems.  On the surface, that would likely make me a fan of I2P2, OSHA’s proposal to require every company in its jurisdiction to have a safety management program.

For those who read this blog, that in turn may prompt the question,  “What gives?  Jim Stanley has blogged here about the problems he sees with I2P2 – which stands for Injury and Illness Prevention Program.  Is there a disconnect here?

The simple answer is, “No.”   I don’t agree with I2P2 for all the reasons Jim has cited in the past,  but also for another very fundamental reason.  Those organizations that desire to have a health and safety management system will find excellent guidance in Z10.  Z10’s guidance includes both mandatory language (“shall”) as well as recommending  language (“should”).  However, the decision about whether a company uses Z10 is voluntary.   OSHA’s I2P2, on the other hand, would be another regulation that would likely be a major battleground between government, industry and unions.

The best alternative

What I’d really like for the U.S. to do is support the International Labor Organization’s Guidelines on occupational safety and health management systems (ILO-OSH 2001).

These guidelines were developed by government, industry and labor representatives and offer a collaborative approach for each nation – and for organizations.  The free ILO document is what I call a performance guideline – it suggests the “what” without getting into the “how.” Each organization is free to choose the best method of implementing its custom tailored system.

ILO also has some important language that should be embraced by OSHA, industry and the labor leaders of this nation:

“2.2. National guidelines

“2.2.1. National guidelines on the voluntary application and systematic implementation of OSH management systems should be elaborated based on the model provided in Chapter 3 (Chapter 3 provides guidance for organizations), taking into consideration national conditions and practice….”

Is it too late to think that this nation might adopt a performance based approach already in use by other countries for more than a decade?  By the way, you will find many similarities between Z10 and ILO.  My fear is that I2P2 will erode two already excellent efforts that provide guidance for H&S management systems.

Posted in Enforcement, OSHA | 1 Comment »





Second-term advice: Bring OSHA regs into 21st Century

November 9th, 2012 posted by Jim Stanley

Jim Stanley

– Reprinted from our newsletter –

Dear President Obama,

Congratulations on your re-election victory. Now comes the hard part – another four years of governing.

You have discussed the importance of helping boost the economy by easing the regulatory burden on companies where appropriate. The first target that springs to mind when it comes to OSHA is the dramatic increase in enforcement by OSHA under your Administration.

I certainly have written extensively on this blog about the misguided thinking behind the enforcement ramp-up. But I think there is an even better first step – bring outdated regulations into the 21st Century.

Many of OSHA’s standards date from the early 1970s when the agency was founded. Read them today and they talk about equipment that is no longer used and procedures that are no longer relevant.

Your administration put all of its eggs in the basket of drastically increased enforcement. That clearly did not work. As I wrote in a recent newsletter article, the number of fatal injuries stayed relatively level during the current administration after a period of substantial decline in the final years of the Bush presidency.

Getting back on track

To resume the downward trend, update the OSHA regulations. Because many are outdated, they leave employers confused about what to do. That confusion leads to safety practices that are not in the best interests of workers. In my opinion, with an updated set of standards, employers would better know what to do, safety practices would improve, and injuries and fatalities would drop.

A couple of examples:

  • Fall protection standards in general industry have not been revised for decades. As a result, they don’t even mention the use of safety harnesses and lanyards, common protective equipment that is used regularly in general industry. Nor do they address walking/working elevated surfaces that are not floors, platforms or runways, again something that is common in industry.
  • Standards for overhead traveling cranes don’t take into account any technological advances since the 1960s, of which there have been many. When OSHA put overhead traveling crane regulations in place in the early ‘70s, they were based on standards adopted years before by ANSI/ASME. They haven’t been updated since.

More ancient standards

Among other general industry standards that are old, old, old:

  • Exit routes
  • Manlifts, powered platforms, and vehicle-mounted work platforms
  • Ventilation
  • Combustible liquids
  • Powered industrial trucks (forklifts)

The list goes on and on.

No administration has wanted to tackle a comprehensive revision of standards, in part because the revision process involves many complex requirements.

The simplest approach would be to take the current ANSI and other consensus standards as a starting point and work through the process from there. That would at least give the revisions a bit of a head start.

A more far-reaching approach would be to adopt a model from some other nations. In that model, OSHA’s standards would take a 30,000 foot view and provide a framework that guides the adoption of more technical details that would be determined by voluntary, outside groups like ANSI.

Whichever approach you take, Mr. President, you would be helping America’s workers stay safe far better than the misguided enforcement crackdown of the last four years.

For more from Jim on OSHA, subscribe to this blog. Contact him at jstanley@fdrsafety.com or 513-377-5644.

Posted in Enforcement, OSHA | No Comments »





OSHA is watching – for 30 years

October 17th, 2012 posted by Jim Stanley

Jim Stanley

A lot can change for a company over 30 years – new leadership, new locations, new products, new services. But one thing must remain constant, according to an often-overlooked OSHA standard: the preservation of certain kinds of records.

Curtis Chambers provides an excellent reminder about that standard in the current edition of the OSHA Training blog.

The standard, OSHA 1910.1020, imposes two requirements on employers:

A) Maintain certain exposure records (including old MSDSs) and/or written programs for 30 years, and certain medical records for the duration of an affected worker’s employment plus 30 years; and,

B) Notify affected employees when they first start work and at least annually thereafter of the existence of these records and their availability to the worker or their designated representative (e.g.: authorized union representative; an attorney or other person to whom the employee has given specific written consent to exercise a right of access).

Included, among others, are records of air surveys, noise surveys, employee medical examinations prior to wearing a respirator, biological or medical monitoring due to work with a hazardous chemical or substance, and development by an employer of an exposure control plan under OSHA’s bloodborne pathogens standard.

Curtis’s blog post does a nice of recapping some of the nuances of this standard along with some tips for compliance. It’s a good reminder that keeping in compliance with OSHA requires continual vigilance.

Subscribe to Jim Stanley’s OSHA blog and receive updates in your inbox or on your reader.

Posted in Enforcement, OSHA, Recordkeeping | No Comments »





Safety incentive programs ineffective, but OSHA rule is off-base

October 15th, 2012 posted by Jim Stanley

Jim Stanley

Safety incentive programs generally don’t work very well, but that doesn’t mean OSHA is on the right track with a memo the agency issued to restrict them.

In an article in the current edition of EHS Today magazine , I delve into the problems with incentive programs.

Take Joe, for example. He’s finishing up his workday, hurrying to get done so he can get to his son’s Little League championship game. Is the promise of a pizza party to celebrate a safety milestone or a chance in a drawing going to cause him to stop to take proper safety precautions? Or is his desire to make it to the first pitch going to override any safety incentive? I think most of us know the answer.

A better, more fundamental approach focuses on management responsibility, compliance and creating a culture of employees who want to be safe. 

But for the companies that choose to use safety incentive programs, OSHA’s new approach creates problems of fairness.

OSHA’s latest memo warned employers that rewards programs unintentionally – or perhaps even intentionally – could encourage employees not to report injuries.

But the memo leaves open to interpretation the “how” and “why” of a safety incentive program. Is a party to mark a safety milestone an opportunity to reward and thank employees, something that most human resources experts tell us workers crave? Or is it a form of pressure to prevent employees from reporting injuries? In many cases, the answer is subjective — and that subjectivity conceivably could lead to fines.

OSHA’s aggressive stance may be well founded in some cases, but it is so broad and confusing that many companies acting in good faith could be found at fault.

Subscribe  to Jim Stanley’s OSHA blog and have delivered directly to you inbox or e-reader.

 

Posted in Accident Prevention, Enforcement, OSHA | No Comments »





Party platforms offer contrasting visions for OSHA

September 10th, 2012 posted by Jim Stanley

Jim Stanley

The difference in how the Republican and Democratic parties view OSHA was in sharp evidence in their recently released platforms.

The Democratic platform appeared to stand firm behind the “New” OSHA and its ramped-up enforcement stance.

“Our Occupational Safety and Health Administration will continue to adopt and enforce comprehensive safety standards,” the Democratic platform reads. Under the Obama administration, OSHA has increased penalties, implemented a Severe Violator Enforcement Program and has cracked down on recordkeeping, among other things.

But OSHA has run into some partisan headwinds in Congress and that was evident from the Republican platform:

“Many regulations are necessary, like those which ensure the safety of food and medicine, especially from overseas. But no peril justifies the regulatory impact of Obamacare on the practice of medicine, the Dodd-Frank Act on financial services, or the Environmental Protection Agency’s and OSHA’s overreaching regulation agenda. A Republican Congress and president will repeal the first and second, and rein in the third.”

“We support a sunset requirement to force reconsideration of out-of-date regulations, and we endorse pending legislation to require congressional approval for all new major and costly regulations,” the Republicans said.

OSHA is currently considering permissible exposure limits to airborne contaminants as well as rules on silica, infectious diseases, bloodborne pathogens, recordkeeping, walking work surfaces and personal fall protection systems, and an injury and illness prevention program.

Subscribe to Jim Stanley’s OSHA blog and receive updates in your inbox or on your reader.

Posted in Legislation, OSHA | No Comments »





OSHA way out of line with new Severe Violator guidelines

August 30th, 2012 posted by Jim Stanley

Jim Stanley

OSHA has issued long-awaited additional guidelines for the Severe Violators Enforcement Program and as you might expect from the “New” OSHA, they are way out of line and don’t address a major problem with the program.

The Severe Violator program, of course imposes mandatory reinspections on companies found to “willfully and repeatedly endanger workers by exposing them to serious hazards.” It also subjects companies to inspections at their other locations around the country and effectively imposes a “shaming penalty” by placing the companies on a public list of severe violators.

Under the new guidelines, a company placed on the list of Severe Violators stays on it for three years after final disposition of the citation and OSHA continues to monitor the company’s safety performance over that period. If performance is not satisfactory, the company remains on the list for three more years.

The three-year stay on the list continues, no matter if the company has abated all the problems found in the original citation or taken other steps to improve its safety program.

For construction companies, this can effectively amount to something close to a “death penalty.” A general contractor or project owner, for example, is highly unlikely to do business with a company on the Severe Violator list. And how can OSHA monitor a company’s continuing safety performance at a construction site for three years when most projects don’t last that long?

Guilty until proven innocent

Just as concerning is OSHA’s failure to do anything about its “guilty until proven innocent” approach to the program. Companies cited as Severe Violators are placed on the list prior to the final resolution of their cases. In some cases that means that companies that are ultimately cleared of a citation still have to pay a “shaming penalty.” That can cost them business and do long-term damage to their reputations.

In fact, OSHA reported that in the first two years of the program’s existence 59 companies have been removed from the list after successfully contesting the citations that landed them in the program.

Companies that willfully disregard worker safety need to be forcefully dealt with, of course. But trampling on the due process rights of companies not proven to have done anything wrong is not the way to do it. Nor is imposing a shaming penalty on companies for years after they have done everything possible to set their safety performance right.

Subscribe to updates to Jim Stanley’s OSHA blog.

Posted in Enforcement, OSHA | No Comments »





Continuous improvement helps abate lockout citation

August 28th, 2012 posted by Mike Taubitz

Mike Taubitz

I’m working with an FDRsafety client to help abate a lockout citation. From the outset we included workers as subject matter experts and employed Task Based Risk Assessment, also known as TaBRA.

Because of my passion for integrating a lean and safe approach with the plant’s goals for continuous improvement, we decided early on to use the cornerstone of continuous improvement thinking, Plan-Do-Check-Act, or PDCA, to develop the abatement plan. We have a great team: management, union, engineering – and a management that wants to do the right thing.

Management wanted to pilot our approach on one line before making engineering changes and updating lockout training. Good thinking – and it allowed us the latitude to constantly shift gears while moving forward. We have now expanded the training on TaBRA to include supervisors and engineers. It has been an eye-opener. TaBRA is much more detailed than a traditional JSA – and the old expression, “the devil is in the detail” is proving true.

It’s great watching a process that creates better working relationships among management, workers and the union unfold with increasing buy-in. But something far more important is happening. The people “planning and doing” for this project have become true continuous improvement thinkers. At every step of the process, we check what we have planned and done and then make adjustments, or “act” upon the lessons learned. This causes us to shift gears slightly, always with the larger goal in mind. Along the way, things are improving.

If I were to characterize the approach, it would be like this: Let’s say you want to sail north. You make a plan, do it, and along the way, constantly check your course, sometimes making necessary adjustments for the wind, currents or other factors. Each course correction is a mini PDCA. You make a new plan based upon your current state, perform the adjusted “do,” check yourself and again make adjustments.

Continuous improvement is indeed continuous. I think Deming, the man who popularized PDCA, would be happy.

Posted in Enforcement, OSHA, Safety and sustainability | No Comments »





Identifying ‘invisible’ employees for safety training

August 27th, 2012 posted by Jim Stanley

Jim Stanley

Even at a company with a strong safety program some employees can be overlooked for training, leaving them vulnerable in case of an accident, fire or explosion.

An excellent blog post by Curtis Chambers on oshatraining.com identifies these employees. They could be employees we don’t normally associate with hazardous work, such as receptionists, accounting clerks or interns.

As Curtis rightly points out, there are OSHA regulations that require information and training for affected workers in these situations, even if they work in the office.
Here are some links to those regulations:

• Emergency Action Plan Training – 1910.38(f)(1) – (3)
• Portable Fire Extinguisher Training – 1910.157(g)(1)– (4)
• Hazard Communication Training – 1910.1200(h)
• Personal Protective Equipment Training – 1910.132(f)(1)
• Lockout Tagout Training for “Other” Employees – 1910.147(c)(7)(i)(C)

Posted in Accident Prevention, OSHA, Training | No Comments »





« Older Entries
Newer Entries »