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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 ‘OSHA’ Category

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How to succeed at an Informal Conference after being cited by OSHA

September 7th, 2011 posted by Jim Stanley

Jim Stanley

Receiving an OSHA citation can be a bit unnerving, but every employer should remember that receiving the citation is in some ways just the beginning, not the end, of the process.

Scott Jacoby, health and safety director for a major metals recycling business, has been on the receiving end of OSHA citations over the years. I asked him to write a guest post on how to handle the OSHA Informal Conference, which any employer may request within 15 working days of receiving a citation. The purpose of the conference is to discuss the alleged violations and negotiate a resolution if possible. Here’s what Scott has to say:

The OSHA Informal Conference is not a place to “wing it.” Over time, I have developed a basic method I call “The Script” to prepare and participate.

In my opinion, the fines are basically meaningless in most cases. The real long term risk to the business is the level of citation/violation. My general goal is to achieve a downgrade of each violation to the lowest possible level. Before the conference I have already decided what violation classifications are acceptable and what I consider to be a deal breaker. In general, this is based upon the future risk to the company of being cited for repeat and willful violations. Remember, OSHA wants to make a deal – they don’t want employers to contest violations!

Elements of “The Script”:

1. Introductions. Formally introduce each person from the company who is attending the conference. I have always found three attendees to be a good number. Most likely a representative from senior leadership, one from safety and a technical expert is enough. You need to give these folks very specific direction on what to say, when to say it and how to say it.

2. Senior leadership statement. The senior leader must express with conviction his/her belief in and commitment to providing a safe and healthful work environment.

3. Safety and health program. Review your efforts in relation to your program requirements, focusing on the positive aspects of the program. You must demonstrate your company’s commitment to making an investment in safety.

4. Enterprise-wide response. Make sure that OSHA understands that the corrective action and abatement for the items identified goes beyond the specific area that was cited and that all similar situations throughout the facility will also be corrected. Provide a quick rundown on hazard identification, risk assessment and corrective action.

5. Know more than they do. You need to be an expert on each alleged violation: manufacturer information, source standards, operator instructions, technical guidelines, OSHA compliance directives and letters of interpretation – everything!

6. Likely to cause death or serious physical harm. That is the basis of a serious violation. Make sure that OSHA has objective evidence regarding this issue on each alleged serious violation. Remember, failure to complete an inspection, audit, inventory or some other basic administrative compliance requirement, such as maintaining records, should never be the basis for a serious violation.

7. They probably made mistakes. Did they cite the wrong standard? Did they follow their own industrial hygiene sampling protocol? Did they follow the Field Operations Manual? Did they actually witness the alleged hazardous condition? Failure to follow OSHA procedures gives you very strong arguments for downgrading or deleting a violation.

8. Lawyers. Don’t bring them to the informal! But in some manner you should relate that you have already sought legal guidance on the alleged violations and are prepared to contest. However, OSHA should also be aware that you would rather come to a negotiated agreement. Have a completed and signed “Notice of Contest” letter prepared and sitting on the table during your discussions.

9. Start with the easy issues. You should be able to get some basic agreement on downgrading or deleting alleged violations that were obviously cited incorrectly. This gives you a chance to get in the flow with OSHA and move closer to the finish line. Remember, OSHA wants to settle.

10. Be done with it. Ensure you have completely abated all the violation items so that you can walk out the door and the only thing you need to do is send a check.

11. Dress appropriately. Might not seem like a big thing, but an appropriate appearance is in your favor.

Scott Jacoby can be contacted at (781) 690-8739.

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Posted in Enforcement, OSHA | 1 Comment »





OSHA alert points up confined-spaces, dust hazards of grain handling

August 24th, 2011 posted by Jim Stanley

Jim Stanley

A recent report from Purdue University and a new hazard alert from OSHA point up the wide range of safety threats to workers if adequate precautions are not taken when working in grain handling.

The Purdue report says that 26 workers died in 2010 in grain bin engulfments and 51 workers were entrapped overall – the most since Purdue began keeping records in 1978.

One way in which workers can become engulfed when entering bins is if they stand on moving or flowing grain, which pulls workers under. Workers also risk suffocation if they enter bins that don’t have enough oxygen or contain hazardous atmospheres. Incidents in grain bins often result in multiple deaths because workers attempt to rescue their coworkers and then become trapped themselves.

And this month, OSHA issued a hazard alert to better educate employers and workers about the safety challenges inherent in handling grain, which beside engulfment include grain-dust explosions, falls and crushing injuries and amputations in working with grain-handling equipment.

Besides issuing a hazard alert, OSHA has been active on the enforcement front. In the past year, the agency has issued more than $4 million in fines to five companies for alleged violations involving the deaths of five workers and injuries to two others.

“Employers need a safety program that gives full attention to all these hazards,” says Jim Manness, former Corporate Safety & Compliance Officer for Bunge North America, a large international grain company. “Consistent implementation is critical,” says Jim, who provides consulting through FDRsafety.

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Posted in Accident Prevention, Enforcement, OSHA | 1 Comment »





OSHA begins forklift emphasis program in 4 states, but all employers should take note

July 17th, 2011 posted by Jim Stanley

Jim Stanley

OSHA’s new emphasis program aimed reducing accidents involving powered industrial trucks is confined to four Southern states, but employers across the country would be well-advised to pay close attention.

Violations involving forklifts are low-hanging fruit for OSHA inspectors everywhere and all employers who use these vehicles should audit their safety programs and take corrective action if needed.

The four-state emphasis program primarily will focus on the training operators receive, maintenance and repair, and the pathways the trucks travel to ensure clear visibility and determine any possible struck-by hazards.

“Powered industrial trucks are a significant source of serious and fatal injuries to workers,” said Cindy Coe, OSHA’s Regional Administrator in Atlanta. “Employers are responsible for ensuring that workers follow the proper safety procedures and for eliminating hazards from the workplace.”

The regional emphasis program, which began May 29, will extend through Sept. 30, 2012.

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Companies should be wary of OSHA’s Corporate-Wide Settlement Agreements

July 5th, 2011 posted by Jim Stanley

Jim Stanley

OSHA is stepping up its use of Corporate-Wide Settlement Agreements in an effort to make more efficient use of its compliance resources, but companies should think carefully before signing off on such an agreement.

Under a CSA, companies that have been cited can agree to correct similar issues at all of their locations. But companies must be careful because failure to follow the terms of the Corporate Wide Settlement Agreement can create even greater liability.

“OSHA has made limited use of CSAs in recent years,” said OSHA Assistant Secretary David Michaels. “However, we believe that the revised directive will be an effective tool to secure worker safety and health protections. Through an employer’s formal agreement to abate serious hazards at multiple facilities, CSAs are an improvement over traditional enforcement measures that could take much longer.”

OSHA has recently issued a new directive regarding Corporate-Wide Settlement agreements that are both national and regional in scope. The directive states that CSAs may “go beyond the subject of the citations/violations to include additional safety and health program enhancements” that were not the reason for the original inspection or citations/violations.

One of the problems for companies with numerous locations is that it can be extremely challenging to monitor performance under the agreement at all of its locations. If OSHA determines non-compliance with issues identified in the CSA, the consequences for the corporation can be significant (Failure-to-abate Notices, repeat or willful violations).

In my opinion, corporations need to examine these agreements very carefully and should seek significant concessions from OSHA in exchange for signing.

Agreements are now required to include a termination date no more than two years from the settlement date. OSHA posts Corporate-Wide Settlement Agreements on its Web site.

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Posted in Enforcement, OSHA | 2 Comments »





OSHA wins new round on enforcement power, this time on records

June 14th, 2011 posted by Jim Stanley

Jim Stanley

OSHA has won another round in its bid to expand its enforcement power, underscoring the need for employers and insurance companies to be careful not to dig a hole for themselves when they conduct safety audits and accident investigations.

A U.S. District judge in Illinois ruled recently that Grinnell Mutual Reinsurance Company had to turn over to OSHA loss control reports, applications for insurance coverage, correspondence, site safety inspections and other safety-related documents it prepared for a grain company where a fatal accident occurred.

As Matt Morrison of the Sherman and Howard law firm wrote, this decision underscores the need for companies to immediately consult legal counsel after an accident. Not only will that help the company understand its legal rights, it may also allow the company to conduct its internal investigation under the auspices of attorney-client privilege, which would protect the investigation from outside disclosure.

Recognizing that OSHA, as well as plaintiffs in lawsuits, will seek safety-related documents after an accident, Morrison offered the following recommendations to employers, insurance companies and consultants:

• Record the known facts, not opinions or speculation. Speculation or opinions, particularly as to the cause of an accident or the existence of a hazard, are often misinterpreted as admissions as to what actually happened. If a cause is only “suspected” or “unknown,” say so.

• Avoid placing blame or admitting legal violations. Statements that supervisors violated company rules or committed “OSHA violations” can significantly impact a company’s liability.

• If a problem is noted, always follow up and document that corrective action has been taken. Almost all safety audit forms have a space to note recommended or completed corrective action. Failure to take corrective action may be construed by OSHA as willful conduct.

• Be truthful. A false statement in a safety audit can be very damaging. Make certain that all audits are carefully reviewed and, if necessary, corrected for accuracy.

• Consider a safety documentation retention policy. Depending on your company’s needs, it may be unnecessary to retain health and safety audits or other safety documentation indefinitely. Make certain any document retention policy complies with applicable law.

• Insist that others preparing audits or other safety documentation for your company recognize the importance of careful drafting. Insurance companies, outside consultants, or others providing safety or loss control services often commit the errors discussed above. Discuss your concerns about proper documentation in advance.

• Seek legal advice immediately after a fatal or catastrophic accident, and in other appropriate circumstances. Because of potential liability, legal counsel should be consulted in the preparation of accident reports, safety audits, and other documentation. It may be possible to have the company’s investigation conducted under the “attorney work product” privilege or the “attorney-client communication” privilege, thereby providing protection against disclosure to OSHA or third parties.

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Posted in Courts, Enforcement, OSHA, Recordkeeping | No Comments »





OSHA takes another step towards reasonable regulation

June 10th, 2011 posted by Jim Stanley

Jim Stanley

OSHA took another step this week towards a more reasonable stance on regulation by announcing a final rule that removes some outdated requirements and streamlines and simplifies some standards.

Although the rule is part of an ongoing program to periodically review OSHA regulations, it meshes with steps taken earlier this year by OSHA shortly after the Obama administration announced an initiative to improve the regulatory environment for business. In those moves, OSHA withdrew ergonomics and noise control proposals.

OSHA made a point of noting that linkage in its press release about the final rule.

The final rule changes or eliminates requirements in the following areas:

• Respiratory protection
• The definition of potable water
• Hand-drying equipment
• Commercial diving
• Transmission of exposure and medical records to the National Institute of Occupational Safety and Health

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Posted in Enforcement, OSHA, Recordkeeping | No Comments »





OSHA initiative on heat illness should be viewed as more than just a suggestion

May 12th, 2011 posted by Jim Stanley

Jim Stanley

OSHA sometimes undertakes educational initiatives, such as one issued last month about the hazards of working outdoors in the heat. But employers would be unwise to ignore the suggestions as “optional” for two important reasons.

The first, of course, is that heat-related illnesses can be life-threatening. OSHA says in educational materials on its website that thousands of outdoor workers are affected each year with conditions ranging from mild heat exhaustion to heat stroke, which can be extremely dangerous. OSHA’s materials offer suggestions on how to prevent those problems.

The second reason, as Rod Smith of the Sherman and Howard law firm pointed out in a recent article, is that “OSHA enforcement may be just around the corner.”

OSHA has in the past used its general duty clause to penalize employers where workers suffered from heat-related illnesses in indoor environments such as glass plants. But the general duty clause could just as easily be used for enforcement outdoors.

To use the general duty clause, OSHA must show that the hazard involved was a “recognized” one and that there were feasible means to avoid the hazard.

As Rod Smith points out, “the very information that OSHA is distributing as part of its current heat illness initiative could be used in later cases to show that employers, or their respective industries, recognize the hazards of working outdoors in high temperatures and the existence of feasible means to avoid such hazards, including the implementation of programs to provide adequate water, shade, and rest.”

To keep up with the latest on OSHA compliance, subscribe to this blog and each new posting will be sent automatically to your email box or reader. You may also subscribe to our newsletter for timely articles about OSHA.

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





OSHA to employers: Be sure you’re not encouraging texting while driving

May 11th, 2011 posted by Jim Stanley

Jim Stanley

Texting while driving has been hard to stamp out, and now employers must be careful that they are not doing anything to encourage the practice, lest they be cited by OSHA.

OSHA has issued a warning to employers that they will be considered to be violating the law if they “require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs.”

According to OSHA, texting distracts drivers, which can lead to accidents. In 2009, more than 5,400 people died in accidents linked to distraction, according to the U.S. Department of Transportation.

OSHA violations would be issued under the general duty clause.

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OSHA’s “general duty” clause – often used and frequently misunderstood

May 6th, 2011 posted by Jim Stanley

Jim Stanley

Even though the general duty clause is a long-standing part of the Occupational Safety and Health Act, its proper use is frequently misunderstood, sometimes even by OSHA itself. As a result employers can be surprised by a general duty citation.

Here’s what you need to know:

The general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.

The general duty provisions can be used by OSHA only where there is no standard that applies to the particular hazard and the employer has its own employees exposed to the alleged hazard.

All the following elements are necessary for OSHA to prove a general duty clause violation:

1) The employer fails to keep the workplace free of a hazard to which its employees were exposed.

2) The hazard was recognized.

3) The hazard was causing, or was likely to cause, death or serious physical harm.

4) There was a feasible and useful method to correct the hazard.

OSHA sometimes gets it wrong

In many situations, OSHA’s 5(a)(1) citations have incorrectly alleged that a violation was the failure to implement certain precautions, corrective measures or other abatement steps rather than the failure to prevent or remove a particular hazard.

The occurrence of an accident does not necessarily mean that an employer has violated Section 5(a)(1), although the accident may be evidence of a hazard. OSHA has instructed its compliance officers that accident facts may be relevant and must be gathered, but a 5(a)(1) citation must address the hazard in the workplace, not the particular facts of an accident.

Any hazard for which a Section 5(a)(1) violation is issued must be reasonably foreseeable.

Recognition of hazard must be established

OSHA must establish that a hazard is recognized in order to issue a general duty clause violation. Recognition of a hazard can be established by OSHA on the basis of industry recognition, employer recognition or “common-sense” recognition.

1) OSHA can establish industry recognition if the hazard is recognized in the employer’s industry. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove a Section 5(a)(1) violation.

2) A recognized hazard can be established by evidence of actual employer knowledge.

3) If industry or employer recognition of the hazard cannot be established, recognition can still be established if OSHA concludes that any reasonable person would have recognized the hazard.

Finally, to establish a general duty clause violation, OSHA must identify a method which is feasible, available and likely to correct the hazard. General duty clause violations may not be issued by OSHA merely because OSHA knows of an abatement method different than that of the employer if OSHA’s method would not reduce the hazard significantly more than the employer’s methods.

OSHA has set certain limitations on the use of the general duty clause.

1) Section 5(a)(1) violations cannot be grouped together, but may be grouped with a related violation of a specific standard.

2) Section 5(a)(1) cannot be used to impose a stricter requirement than that required by a standard.

3) Section 5(a)(1) cannot be used to require an abatement method not set forth in a specific standard.

4) Section 5(a)(1) cannot be used to enforce “should” standards.

5) Section 5(a)(1) cannot be used to cover categories of hazards exempted by a standard.

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Posted in Enforcement, Legislation, OSHA | No Comments »





Injury, illness rates were heading down even without OSHA enforcement push

March 25th, 2011 posted by Jim Stanley

Jim Stanley

There’s great news in a recent report from OSHA – injury and illness rates, collectively known as recordables, were down sharply in 2009 compared with 2005.

As you can see from the chart below, the trend line moved on a steady downward path.

Of course that’s great news for workers and their companies. With a safer workplace, everyone wins.

But the chart does make you wonder. Nearly all that progress in injury and illness reduction was made prior to OSHA’s announcement that there was a new “sheriff” in town for workplace safety enforcement.

Under the Bush administration, there was a much stronger emphasis on voluntary cooperation between industry and OSHA. When the Obama administration took over, OSHA’s new leaders said the voluntary approach did not do enough to protect workers and reduce injuries and illnesses. But many business leaders have complained that OSHA’s enforcement push has been misguided and overdone.

As time goes on and OSHA compiles figures for 2010 and 2011, during the full bloom of the enforcement campaign, it will be interesting to see where the trend line goes and whether the sheriff got the real job done – keeping workers safe.

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





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