OSHA is proposing $1.2 million in penalties against Goodman Manufacturing Co., alleging 83 willful violations for failing to record or improperly recording work related injuries and illnesses at a Houston plant.

“Goodman had either not recorded or failed to properly record the nature and/or duration of 72 percent of employee injuries and illnesses from January 2008 to March 15, 2010, on its log,” OSHA said.

OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for OSHA’s requirements or employee safety and health.

Last month Inside OSHA (subscription required to view) quoted unidentified sources as saying that “the agency has not found the number or degree of violations it had expected to uncover through the program.”

“A memorandum was issued on July 27 outlining the agency’s plan to halt programmed inspections under the OSHA recordkeeping National Emphasis Program (NEP), according to sources,” the newsletter reported.

Nonetheless, companies should continue to pay careful attention to accurately recording injuries and illnesses on their OSHA logs.

For more information on reporting, see my previous post “A recordable injury may not be what you think.”

OSHA announced the program last year and said it would concentrate on industries with traditionally high accident rates. Within those industries, companies that have reported low accident rates were to be the most likely to be audited because of suspicions that the low rate might be generated by under-reporting.

But Inside OSHA (subscription required to view) is quoting unidentified sources as saying that “the agency has not found the number or degree of violations it had expected to uncover through the program.”

“A memorandum was issued on July 27 outlining the agency’s plan to halt programmed inspections under the OSHA recordkeeping National Emphasis Program (NEP), according to sources,” the newsletter reported.

Inside OSHA quoted an unidentified OSHA spokesman as saying that agency wanted to take a different approach to the recordkeeping program. “OSHA has several strategies for targeting that it’s planning to work through to determine which gets at its concerns on recordkeeping,” the newsletter quoted the spokesman as saying.

The resulting large aggregate penalties are part of a strategy which OSHA believes improves the efficiency and effectiveness of the agency and conserves its limited resources by making an example of the employers who are cited. In non-egregious cases, OSHA issues one violation for all instances of the same hazard, and as a result the proposed penalties are much smaller than egregious penalties.

OSHA has revived the strategy and is issuing many more so-called “egregious” citations, including two instances last week that resulted in large proposed fines in Connecticut and Wisconsin. The question is whether those violations will hold up if the employers choose to litigate them.

According to OSHA, the violation-by-violation citations are not primarily punitive nor exclusively directed at the individual worksites or workplaces involved. OSHA believes that these citations serve a public policy purpose; namely to increase the impact of OSHA’s limited enforcement resources.

In Middletown, Conn., OSHA cited three construction companies and 14 site contractors for 371 alleged workplace safety violations, and proposed $16.6 million in penalties in connection with an explosion at a power plant construction site that killed six workers and injured 50 others. The accident occurred when natural gas was pumped under high pressure through new fuel gas lines to remove debris.

In the other accident, OSHA said a worker at a grain storage bin was engulfed in soybeans up to his chest and almost died. The agency issued egregious violations and proposed fines of $721,000 against a Burlington farmer cooperative.

In my experience, when OSHA has to litigate the egregious citations, they are required to prove in each instance of violation that if an accident occurred it was substantially probable to cause death or serious physical harm, there was employee exposure to the hazard and that the cited employer knew of the hazard or could have known through the use of reasonable diligence.

In large egregious citation cases that are aggressively litigated by the employers it is very difficult for OSHA to sustain its burden of proof for each and every instance of violation.

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The 10-year term would apply in situations where a violation contributed to the death of an employee. The current maximum sentence under the OSHA act is six months and the law does not specify that officers and directors can be held criminally responsible.

Employers need to pay close attention to this bill since the provision on criminal penalties is only one of several proposed enforcement changes in the bill that would radically alter the occupational safety and health landscape for employers. In my view the bill would significantly change OSHA as we now know it.

The proposed measure is in keeping with the Obama administration’s philosophy of substantially increasing enforcement, which OSHA has already been carrying out administratively in such areas as training, recordkeeping, ergonomics and severe violations.

The proposed revisions to the law, introduced as the Protecting America’s Workers Act, have been percolating for months. But it now appears that the House Education and Labor Committee will hold a hearing on the bill on July 13, followed soon after by a committee vote. The bill could reach the floor of the House by the end of the month.

The bill originally was a standalone measure, but now has been combined with a bill to make changes in the Mine Safety and Health Administration. Pressure is strong to change MSHA because of the fatal accident that occurred earlier this year at a Massey Energy Co. mine in West Virginia and that in turn makes it more likely that changes to OSHA will pass as well.

One especially significant change to the OSH Act would allow officers and directors to be held criminally liable In cases where they had knowledge of violations that led to a fatality. The law currently states that an employer may be held criminally liable, but the definition of an employer is vague enough that it rarely is enforced against individual managers. The new bill specifies that the term “employer” means officers and directors.

Other changes In the bill:

• Employers would be required to immediately begin abating serious, willful or repeated violations. Currently abatement requirements are automatically stayed if an employer contests a violation. Under the bill, employers who want a stay would have to ask for one from the Occupational Safety and Health Review Commission. (I call this provision the “guilty until you prove yourself innocent” clause.)
• Protections for “whistleblower” employees would be significantly strengthened. It appears to me that the bill would make it virtually impossible for employers to discharge an under-performing employee for cause if that employee makes any kind of complaint about safety conditions, warranted or not. This has a potential to severely inhibit employers’ ability to hold employees and managers accountable.
• Prison terms of up to five years could be imposed on any officer or director of a company that knowingly violates any OSHA standard, rule or order if that violation contributes to serious bodily harm to an employee. Currently there is no provision in the OSHA act for a prison term in such situations.
• The maximum civil penalty for willful and repeated violations would increase from $70,000 to $120,000. If the violation resulted in a death, the maximum penalty could be $250,000.
• The maximum civil penalty for serious violations would increase from $7,000 to $12,000. However, if the serious violation resulted in a death, the maximum penalty could be $50,000.
• The maximum civil penalty for other-than-serious violations would also increase from $7,000 to $12,000.
• Minimum and maximum penalties would be adjusted for inflation at least once every four years beginning in 2015.

For tips on how to prepare your company for increased OSHA scrutiny, see my article “How to meet the challenge of greatly increased OSHA enforcement.”

Arthur Sapper of the McDermott Will & Emery law firm has written an excellent article that straightens out some misconceptions he says are prevalent in the construction industry about what injuries must be recorded.

Here’s what he has to say:

Work restrictions

“The single most common of mistakes that lead to recordkeeping charges is misunderstanding what an OSHA-recordable work restriction is. Employers commonly but honestly believe that if an injured employee can still perform useful work, the injury is not recordable as a work restriction.

“Thus, employers may try to avoid an OSHA recordable by assigning office work to an injured tradesman. Other employers believe that an injury case is not recordable if the employee can still perform work within his job description. So they might, for example, give purely sedentary electrical work to electricians who otherwise would climb ladders daily to perform their jobs.

“Both ideas would be mistakes. OSHA’s regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state that a restriction occurs when either:

“1) The employer keeps an occupationally injured employee from performing one or more “routine functions” of his job; or
“2) A licensed health care professional recommends that the employee not perform one or more “routine functions” of his job. The term “routine function” is specially defined as a work activity regularly performed at least once per week. In the case of the injured electrician now unable to climb a ladder, the case is recordable because the electrician otherwise regularly climbs ladders every day.

Light duty

“A second and related misconception is that light duty is not a work restriction. A recordkeeping regulation (§ 1904.7(b)(4) (vii)) indicates that light duty can indeed amount to a work restriction. In fact, this regulation indicates — although indirectly — that light duty is presumptively a restriction.

“The regulation starts with the question, “How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in ‘light duty’ or ‘take it easy for a week’?” After stating that the employer “may” ask the physician whether this means that the employee may not perform all of his routine job functions or work his entire normally assigned work shift, the lengthy provision ends with this: “If you are unable to obtain this additional information from the physician … who recommended the restriction, record the injury or illness as a case involving restricted work.”

“OSHA officials take this last sentence to mean that “light duty” is a recordable work restriction unless the physician affirmatively states that the employee may perform all of his routine job functions and may work a full shift. Employers are thus well advised that when faced with a vague restriction such as “light duty” to contact the physician and get clarification on what tasks the employee may not perform.

“If even one of these tasks is among the work duties regularly performed at least once a week, an OSHA recordable case must be entered on the log.
“Another aspect of light duty work restrictions that employers overlook is that the recordability of a restriction depends on the particular employee’s routine functions. Hence, two employees can be identically injured, treated and restricted, but the restriction might be recordable for only one of them. A restriction for an ironworker might not be a restriction for a receptionist.

“An employer therefore needs to review with the employee or the employee’s immediate supervisor what tasks the employee regularly performs at least once per week and whether the restriction prevents any from being performed.

Final caution

“A caution can be offered about these misconceptions. Even OSHA’s online Recordkeeping Handbook, of which few employers are aware, gives inadequate information about gray areas in the regulations.

“Employers with questions are understandably reluctant to call OSHA, plus area offices are often too busy for an employer to reach a knowledgeable person; moreover, different OSHA offices may offer different advice. Even so, employers should make every effort to get definitive guidance from OSHA or legal counsel rather than guessing what the recordkeeping requirements are. A wrong guess may mean big penalties from a less than sympathetic agency.”

OSHA tagged Lowe’s Home Centers Inc. in Cincinnati and Dayton, Ohio, with $110,000 in proposed penalties for continually failing to document and report employee injuries and illnesses.

Here’s what OSHA said about it:

“As a result of an October 2009 inspection in Cincinnati, OSHA issued Lowe’s four willful citations with a proposed penalty of $40,000. Based on a November 2009 inspection, OSHA issued the Dayton store seven willful citations with a proposed penalty of $70,000. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirement, or plain indifference to employee safety and health.”

OSHA requires employers to record and maintain occupational injuries and illnesses on the OSHA 300 log.

If you have a question about how to handle recordkeeping in your business, ask us.

There are five things that should be on the immediate to-do list for every company that received the letter. Read about them in our newsletter.

OSHA’s gave notice that it is proposing to revise its recordkeeping regulation by restoring a column on the OSHA Form 300 to better identify work-related musculoskeletal disorders (MSDs). OSHA says that the rule “does not change existing requirements for when and under what circumstances employers must record musculoskeletal disorders on their injury and illness logs.”

But I think this step marks the beginning of an attempt by OSHA to reissue an ergonomics standard. I anticipate that OSHA will expend huge amounts of time and money to try to promulgate a new ergonomics standard, even though a similar attempt was rejected by Congress in 2001. I testified before OSHA at that time against putting such a standard in place.

I really don’t understand why there is an interest at OSHA for an ergonomics standard when there are extensive efforts already underway in private industry to reduce/eliminate ergonomic injuries and OSHA has other items on its plate that should be higher priorities. Among them are proposed standards that have been in the works for many years and are very much needed in industry. Some examples are a confined spaces standard for construction, lockout/tagout standards for construction and revised fall protection standards for general industry.

The GAO said this week that OSHA shouldn’t rely solely on employer data on accidents because there is evidence some companies pressure workers not to report injuries or illnesses. The GAO said that about a third of health providers it surveyed said they have been pressured to withhold medical treatment so a company could avoid filing an injury or illness report.

Solis said she would respond quickly to address issues raised by the report. Earlier this year, OSHA announced a one-year program to increase enforcement of recordkeeping requirements in industries with traditionally high accident rates.

Read a fuller account of the GAO report and the Labor Secretary’s reaction.

If you have a question about how to handle recordkeeping, I would be happy to provide an answer at no charge. Call me at (513) 317-5644.

The program concentrates on industries with traditionally high accident rates. Within those industries, companies that have reported low accident rates are most likely to be audited. OSHA says that to qualify for inspection under the program, a workplace must be in a selected industry, have 40 or more employees, and show a Days Away, Restricted or Transferred (DART) rate of 4.2 or below based on 2007 OSHA 300 data.

Targeted industries include steel and iron foundries, concrete pipe manufacturers, soft drink manufacturers and automotive seat and interior trim manufacturers. A complete list of those industries, and more detail about the program is contained in a report from Sherman and Howard.