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.

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.

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.

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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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.

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

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.

We’ll also assume that your manufacturing operations are well guarded, employees are trained, leading indicators are utilized and you have tried behavior-based safety approaches. What’s next?

The answer lies not in the latest program or a “silver bullet.” The solution is a long-term process of continuous improvement that engages the workforce to continually making things better. In an ideal situation, employees will take personal responsibility for their safety and look out for their colleagues. There is a foundation step before you embark on this journey:

• Employees “wanting to” be safe rather than “having to” be safe is the cornerstone of workers being responsible for their actions.

• Safety viewed as a 24-7 family-driven value is the motivator for employees “wanting to” be safe.

Ingredients of continuous improvement

Think of a continuous improvement process as a completed home that is always improved. If you only build the foundation, it won’t be a very pleasant home. Building the remaining structure requires things such as:

• Processes that communicate problems on the factory floor
• Engaging workers in identifying and mitigating hazards
• Supervisors treating employees with respect
• On-going training and hazard abatement processes
• Management communicating a personal “I care” message
• Risk assessment and other simple tools allowing employees to identify and mitigate risk without having to call the safety department

Organizations that choose this approach will reap the benefits of improved safety, quality and productivity. Remember that safety is a value – not a priority competing with the priorities of other functions. Improving safety not only improves the health and well-being of workers but also improves overall organizational performance.

If we want employees to commit to us, we need to commit to them on a personal level. That commitment can only be demonstrated with a process of continuous improvement.

The agency is asking for 25 additional compliance officers. That is in keeping with a two-year trend of increased emphasis on enforcement. OSHA chief David Michaels also gave other indications of continued pressure on enforcement in a webchat Monday:

• The agency’s top priority, he said, is a putting into place an Injury and Illness Prevention Program, which has become known as I2P2. The agency is proposing that every company under its jurisdiction be required to develop a safety program that meets specific OSHA requirements.

As I have blogged previously, while it is an excellent idea to require every company to have a safety program, it is not a good idea to force companies to follow specific requirements. Businesses vary too much to make that practical.

• The agency is also proposing to expand its Site Specific Targeting program. That program currently targets companies with 40 or more employees that have high injury rates. OSHA is proposing to broaden the program to include companies with 20 or more employees.

“By targeting employers with high injury rates who have 20 or more employees, we will be impacting a far larger group of workplaces, while actually conducting a slightly higher number of inspections,” Michaels said. “In 2012, we project about 2,000 SST inspections compared to 1,780 conducted in FY 2010.”

Backing off on Voluntary Protection Program

On the other hand, Michaels said OSHA was backing away from a plan to reduce support for the Voluntary Protection Program. This program encourages voluntary cooperation between companies and OSHA.

OSHA had proposed eliminating the appropriation to run the program and redirecting the funding elsewhere. In its place, OSHA wanted a fee-based system to fund the program. But Michaels said Monday, “We are no longer proposing alternative funding for the Voluntary Protection Program (VPP). OSHA will continue to fund VPP out of the federal compliance assistance budget activity.”

This pullback follows two other retreats on enforcement last month, when OSHA said it was withdrawing both a noise control proposal and a plan to add an separate ergonomics column to the injury and illness recordkeeping log companies are required to keep.

Withdrawing those two proposals and restoring the voluntary cooperation program with industry will go a long way to righting the “excessive” regulation that the President pointed to as a barrier to economic growth. Further moderation of enforcement zeal would help as well.

The ergonomics proposal would have required employers to enter musculoskeletal injuries and illnesses in a separate column on their OHSA logs. The agency said in a news release that small business had raised concerns about the plan and that it was being temporarily withdrawn to gather more input.

The ergonomics proposal and a proposed noise control initiative withdrawn last week were in the forefront of OSHA’s massive enforcement push over the last two years. While it is unclear what is behind the two withdrawals, the timing is interesting — coming just after President Obama announced a plan to revise federal regulations deemed excessive and harmful to economic growth.

There is no indication whether OSHA plans to backtrack elsewhere and doing so would be much more difficult in many cases since it would mean pulling back on initiatives that have already been put in place, such as the Severe Violators Enforcement Program and the substantial increases in average penalties across the board.

However, there is another proposal not yet implemented that OSHA would be well-advised to rethink – the Injury and Illness Prevention Program. Under that plan, announced last spring, all employers under OSHA’s jurisdiction would be required to have a safety program following specific federal guidelines.

While I agree with the idea of requiring all employers to have a safety program, it is impractical to have very specific federal requirements for those programs, since there are so many differences among businesses. I2P2 is another case of OSHA overstepping and it ought to be rethought.