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.”

Nelson, who chaired the first Construction Industry Institute task force that researched contractors with few or no injuries, was featured in a recent article on the Safety Daily Advisor website.

The article presents the following checklist, developed by the Institute, of practices followed by “zero injury” organizations.

• The president/senior company management reviews safety reports.
• Top management is involved in injury/incident investigations.
• Management and supervision are evaluated on safety performance.
• Project safety representatives report directly to senior management.
• The company maintains a minimum of one safety representative for every 50 workers.
• Projects have site-specific safety plans.
• Before each task, a task safety analysis/pretask planning meeting is held with the foreman’s crew.
• Safety training is a line item in the project budget.
• Every worker on the project attends a standard orientation training session.
• Safety orientation is formal.
• Workers receive an average of at least 4 hours of safety training each month.
• Superintendents and project managers attend mandatory safety-training sessions.
• All levels of management and supervision receive training in behavior-based safety.
• A structured worker-to-worker safety observation program is in place.
• The company/project supports and maintains an effective, formal near-miss reporting process.
• Workers are encouraged to report near misses.
• Safety recognition/rewards are given to workers at least monthly.
• Family members are included in safety recognition dinners.
• Workers are evaluated on safety performance.
• Subcontractors are required to submit project-specific safety plans.
• Sanctions are imposed when subcontractors do not comply with safety requirements.
• Employee safety perception surveys are conducted.
• Off-site company personnel perform frequent audits.

I am confident that most safety professionals would concur that this extensive list has all the ingredients necessary to create an organizational culture where safety is ingrained in daily operations. However, we are once again overlooking the “why” of safety.

In W. Edwards Deming’s 14 points for management transformation to a sustainable organization (“Out of the Crisis,” 1982), he clearly cites the need to explain “why” to employees.

I keep wondering “why” we in safety keep failing to explain “why” safety should be important to each employee. Typically, everyone is asking, “What’s in it for me?”

Isn’t it about time that we address this fundamental issue?

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OSHA is instructing its inspectors to issue “serious” citations if a “reasonable person” would conclude that safety training has not been provided to employees in a format which they are “capable of understanding.”

Rod Smith, Pat Miller and Matt Morrison of the Sherman and Howard law firm have published an excellent newsletter article with advice about how make sure your company meets the requirements. Here are some excerpts:

“This could raise several troubling issues for employers. Allowing inspectors to issue a citation based on the views of a hypothetical ‘reasonable person’ is an extremely ambiguous standard, and an invitation to arbitrary enforcement. Although many safety professionals understand the need to translate training materials into appropriate foreign languages, OSHA does not provide any guidance on how employers can present training in a manner which all employees are ‘capable of understanding,’ so as to avoid a citation.

“Learning styles vary widely among individuals, and some employees may be reluctant to admit to their employers that they do not understand the training material. … In short, this new enforcement initiative has the potential to saddle employers with unjustified citations.

“So, what should employers do to avoid a citation and ensure that their employees understand the safety training that they receive? Providing complex, written materials to employees with a sign-off sheet indicating that the employee ‘has read and understood’ the training material is not enough, especially if the employee cannot read or comprehend the rules. A better approach, as recommended by OSHA, is for employers to realize ‘that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level, or in language other than English, they will also need to provide safety and health training to employees in the same manner.’

“Employers may find it worthwhile to:

• Adopt simplified safety rules and ‘plain English’ restatements of OSHA requirements.
• Utilize written tests, translated where necessary, to confirm employee knowledge.
• Where reading comprehension presents an issue, draft policies and training materials with diagrams or pictures, showing the ‘right way’ and the ‘wrong way’ to perform the job.
• Verbally quiz employees with language or reading comprehension barriers, making certain to document the determination that the employee adequately understands the materials.
• Use a documented task evaluation that requires employees to actually demonstrate how to safely perform a job, such as putting on a safety harness or locking out a piece of equipment.

“These efforts may go a long way toward ensuring that employees understand the safety training they receive and convincing OSHA that training was presented in a manner that employees were capable of understanding.

“To assist employers in meeting their training obligations, OSHA has created a web-based assistance tool intended to help employers communicate with a Spanish-speaking workforce. This tool is located on OSHA’s website.

“OSHA’s new enforcement policy is available here.

When we discovered violations of lockout, it was common to counsel, warn and retrain employees using skills-based training. Eventually, we tried to see things through the eyes of employees and recognized more clearly the issues posed by design constraints.

As an example, in large manufacturing facilities it was common to find disconnects located in overhead mezzanines where electrical panels for transfer lines and other special equipment were placed to maximize floor space. Access to these panels and their disconnects was by walking up a properly guarded ladder. Let’s face it, ladders cost much less and use far less space than stairs.

Put yourself in the place of a maintenance worker performing a task that required lockout. It required walking to the ladder, up the ladder, determining which panel controlled the hazardous energy, pulling the disconnect and then locking it with a personal lock. Back down the stairs to perform the task. Then, a repeat of the prior steps to remove the lock and re-energize the power was necessary.

In addition, there might be another problem that would require further work and a repeat of the lockout sequence.

We determined that existing standards had been developed by experts with electrical backgrounds. Overhead disconnects were great for electricians working on electrical panels, motors and other overhead equipment, but what about personnel on the factory floor? Disconnects were ultimately placed at both floor level and mezzanine to accommodate work being performed at both levels. For me, it was my first insight into what later came to be called Safety Thru Design and now Prevention Thru Design being led by NIOSH. (More on these in later blog posts.)

The better designs improved compliance with employees following standard safety procedures.

It was clear that the old designs required significantly more time to properly lockout. In some cases, the time to lockout equaled the time to perform the work. Furthermore, climbing a vertical ladder is anything but comfortable. Was it any wonder that employees chose to take shortcuts?

What I failed to see back then was how profound the time and comfort issues were in the overall scheme of things. It is another example of how I had my eyes opened sitting through my first FDSsafety awareness session. Had I recognized time and comfort issues as pervasive drivers of behavior, perhaps we would have not only worked on the technical challenges but also tried a “softer approach” to offset the natural tendencies to take shortcuts.

Where lockout and tagout is involved, employees must always be thinking of their family and that their personal safety cannot be compromised – regardless of time and/or comfort issues.

He offered, “Put an imaginary gun to the employee’s head and tell them to do the job. If they can do it, you’re dealing with an attitude issue – not a skills issue.” Granted, that is a crude metric but it serves as a valid test when we encounter employees taking shortcuts in safety.

Ask employees, “Do you know how to do this job?” and you will most often receive an affirmative answer. Then ask if he/she knows how to do the job safely. My experience suggests that you will again hear a “yes.” If you believe those responses as I do (why would the employee lie?), why do we insist on using skills training to deal with an attitude issue?

We in health and safety use the tools most available in our toolkit – more skills training. Analysis of incident/near miss reports, bolstered by personal experience, suggests that employee training or retraining is often referred to as appropriate corrective action. (I will not digress about the problems with incident investigation and the lack of root cause analysis because it will detract from the point I wish to make in this blog.) Think about how you approach lockout issues, incidents with fork trucks, fall hazards, etc. Usually we put employees back through our available skills training, hoping that it will somehow change their views on working and acting safely. Is it any wonder that employees complain about safety training being boring?

If we want sustainable growth in our companies and wish to prove that “people are our most valuable asset,” it is crucial that we try to get to the hearts as well as the minds so that employees use the skills and knowledge they already possess.

Listed below are my criteria for effective safety training that contributes to sustainability:

• Face to face with a simple, easy to understand message and provided by a knowledgeable and credible facilitator/trainer
• Promotes the view that safety is a value on and off the job and that safety is a value within the organizational culture, facilitating a sustainable future
• Respectful of individuals and different views
• Open dialogue about real world issues with individual and team interaction
• Promotes the concept that safety should be “want to” because of family and concern for others, not “have to” because of OSHA and company rules

It is time that we start dealing with the real world and talk with employees as adults and the real reasons why we all take shortcuts.

Whether an employee is talking on a cell phone while working or not wearing his/her personal protective equipment, many workers have placed themselves and others at needless risk to save time or be more comfortable.

But there are ways to combat this kind of decision-making by creating a safety culture on construction sites. Among the ingredients: accountability, demonstrated commitment by management, zero tolerance for unsafe practices and creating an atmosphere where workers are acting safely because they want to, not because they have to.

All this and more is the subject of an article I wrote in the current issue of Occupational Health and Safety magazine. It is posted elsewhere on this website and I invite you to have a look.

I keep waiting for more organizations to tackle the real issues in employee safety:

• Safety is a value – not a #1 priority
• Moving from “have to” be safe to getting employees to “want to” be safe.
• Safety is personal not just occupational – it must be 24-7

To be effective, safety must be a value interwoven into the organization’s culture. Note that this is not safety culture. Let us quit trying to make safety #1 at the expense of something else and recognize it for the organizational value it really is.

When we really care about people – and talk with them on an adult level – we open the door for employees to “want to” be safe and accountable for their actions. We plant that seed by getting them to think about the impact that a serious or fatal injury would have on their family and loved ones.

If we do the first two items, we can instill a family driven safety value that is 24-7. It is time that we move beyond the 4% of fatal injuries that are occupational and begin to tackle the challenges of safety at home and behind the wheel. Doing so offers the opportunity to improve the health and well-being of people on and off the job.

• When is the last time your organization tried to tackle these issues?
• When did you attend a professional conference that offered sessions tying all these issues together?
• Isn’t it time to try something different from what we have been doing?

I started my safety career in 1970 and it is nearly 40 years later. I am still hoping that the profession will one day opt for simple, proven approaches that can bring about real change in the thinking of a workforce. Hope I am not a naïve optimist….

My partner at FDRsafety, Fred Rine , is one of the safety and health professionals that I have been associated with over the years that really “gets it.”

Fred is the best motivational speaker on safety I have ever heard. That’s because he speaks with workers and managers about safety awareness — not the “how” of acting safely, but the “why.” This is the most neglected topic in the safety field.

Fred’s career spans over 35 years and it documents his outstanding work ethic, dedication to success and entrepreneurial spirit. After earning a Bachelor of Science and Business Administration and a Masters of Science in Safety Management from West Virginia University, Fred began his career in 1971 as Superintendent of Safety and Plant Protection for Wheeling Pittsburgh Steel Corp.

After seven years in the steel industry, Fred moved to Roadway Express Corp. as Managing Director of Safety, Health and Fire Prevention. At that time, Roadway was the nation’s largest trucking firm and Fred’s safety program and policies led the company to improve worker and vehicle safety.

In 1981, he went to Federal Express Corp. where he was the Managing Director of Safety, Health and Fire Prevention. Fred directed a staff of nine managers and 90 professionals and implemented a world-class safety program, which is still in place today.

Fred’s next career move was in 1992 when he became the Vice President of Safety and Health for the National Safety Council.

After realizing the potential for safety and health consulting services, Fred founded FDRsafety in 1996. Fred’s lifelong success has been built upon his experience, leadership and business insight.

Fred took a simple philosophy – motivate employees to “want to” work safely as opposed to the traditional approach of telling them they “have to” work safely – and created a worldwide safety consulting organization.

His respect for people and passion for instilling safety as a 24-7 value resonates with everyone. Built upon 10 words, the approach is both simple and profound, and it works in any industry sector.

FDRsafety has trained over 400,000 workers and managers in safety awareness in companies across the U.S., Canada and Mexico. The training consistently gets the highest positive reviews from the workers and managers who take the course, even from attendees who initially felt that a training session on safety was the last place they wanted to spend their time.

For those who have not attended one of these sessions, I hope you have the opportunity to do so in the near future. Remember, OSHA compliance gives you just that – compliance. But FDRsafety’s safety awareness program is a foundation step for reducing risk on and off the job.

How to Prepare for an OSHA Inspection

1. Larger monetary penalties for violations: These are included in a measure called the Protecting America’s Workers Act, which is expected to pass Congress.
2. More aggressive enforcement: The new Secretary of Labor, Hilda Solis, has pledged to “put enforcement back into the Department of Labor” – including more OSHA inspections. Additionally, OSHA’s aggressive National Emphasis Programs are ramping up in various industries, including refineries, chemical companies, general manufacturing, construction and any industry involving combustible dust. Employers can expect a shift away from the cooperative policy of the recent past to a more aggressive, citation/violation-based approach.
3. More inspectors: OSHA will probably increase its enforcement staff to support its emphasis on high-risk industries, such as construction and heavy manufacturing.
4. More attention to recordkeeping: OSHA will increase its focus on this regulation because it believes that many employers have been inaccurately reporting injuries and illnesses for some time.
5. More liability for actions of subcontractors: New this year is enhanced OSHA liability for employers on multi-employer worksites. The 8th U.S. Circuit Court of Appeals ruled that OSHA can increase its citation/violation authority over owners and controlling employers for the safety actions of subcontractors. The case was Solis v. Summit Contractors.

So what can companies do to get ready for this tougher enforcement environment?

The best step is to ensure that your safety and health program is effective and enforced at all levels of the organization.

You can also have a mock OSHA inspection conducted in your workplace. This will review hazards assessments, training and required documentation, safe job procedures, operator certifications, recordkeeping and required safety and health program implementation (lockout, confined space, fall protection, etc.). Utilizing third-party professionals can ensure unbiased feedback about your programs.