At the business level, we buy machinery, equipment and tooling that list conformance to appropriate standards. ANSI B11 (general industry machine safety standards), API (American Petroleum Institute), NFPA, ASTM and UL are only some of the dozens of standards developing organizations in world of industrial safety. We also have standards for procedural things like lockout (ANSI Z244.1) and management system standards (ANSI / AIHA Z10).

As a matter of information that is sometimes a point of confusion, ANSI (American National Standards Institute) does not develop standards. Instead, ANSI accredits over 200 standards developing organizations in the United States and administers the consensus process of development to ensure balance, openness and due process.

In the global arena, we find groups like ISO (International Organization for Standardization) and IEC (International Electrotechnical Commission) that are familiar to many. Less familiar is the fact that far more international standards are developed by organizations such as ASTM International and IEEE. The European Union has CEN standards that are roughly equivalent to ANSI standards in the US.

Voluntary safety standards are a complex and confusing world, and are akin to peeling an onion – there is always another layer – and sometimes you just want to cry. All of us benefit from the untold hours spent by thousands of volunteers who devote time and energy to develop the requirements that will protect the public and employees.

This is the first of what will be a series of blog posts to help HSE pros gain a better understanding by “eating this elephant” one bite at a time. For now, the answer to the questions of “What’s in it for me?” or “Why should I care?” is this:

Without voluntary safety standards:

• Companies would be dealing with a huge number of hazards that should have been addressed in the design phase of products or services.
• HSE pros would have to address increased residual risk because hazards were not eliminated and feasible engineering controls were not used. Achieving acceptable risk would require increased warnings, training, administrative controls and PPE.

Voluntary standards make the world a safer place.

But there are some things you can do to avoid having a violation classified as “willful” or “repeated” which attorney Arthur Sapper outlines in an informative article. Sapper, an attorney with McDermott, Will & Emery, is one of the real pros in the safety community, having served as deputy general counsel to the Occupational Safety and Health Review Commission.

First a little background. Violations found by OSHA to be “wilfull” or “repeated” carry higher penalties – up to $70,000 per violation – than do other-than-serious violations, which have a maximum penalty of $7,000. Under the Obama admistration, OSHA is issuing “egregious” willful citations at a rate five times greater than when the President was sworn in.

So here are Sapper’s five steps for avoiding a “willful” or “repeated” violations when dealing with an OSHA inspector. To read the full article, click here.

1. Don’t argue with the standards.
2. Know your company’s history with OSHA
3. Don’t ignore employee complaints or accident reports
4. Don’t argue with the inspector
5. Consult a knowledgeable attorney early on

To keep up with the steps OSHA is taking to increase enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

The changes to OSHA were originally in a bill called the Protecting America’s Workers Act, but the measure was merged with one to tighten enforcement in the nation’s mines after an accident in West Virginia earlier this year killed 29 coal miners.

Committee Republicans said changes to OSHA should be stripped out of the mine safety bill and made a motion to do so, but it failed in a vote.

The bill now moves to the House floor.

For a more complete account of Wednesday’s debate, see an article in “The Hill.”

To keep up with this bill, as well as the administrative steps OSHA is taking to step up enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

“Penalties alone will not improve workplace safety—remember, in most cases, penalties are imposed after the fact of an injury or fatalities,” said Jonathan Snare, speaking for the Coalition of Workplace Safety, which includes the U.S. Chamber of Commerce and other employer groups. He was testifying before the House Education and Labor Committee.

“The critical mission of OSHA is to assist employers to make sure these injuries and fatalities never occur in the first place. … This approach can be achieved by using existing programs that offer compliance assistance, outreach, and training.”

David Michaels, Assistant Secretary of Labor of OSHA, had a different point of view.

“Safe jobs exist only when employers have adequate incentives to comply with OSHA’s requirements,” he said. “Those incentives are affected, in turn, by both the magnitude and the likelihood of penalties.”

Snare and Michaels disagreed on a number of other proposed amendments to the OSHA Act, which have been merged into a bill that would make changes to the Mine Safety and Health Act:

• Rules that would no longer grant employers an automatic stay of requirements that they abate an OSHA violation that they are contesting:

  Michaels said the change was needed among other reasons because OSHA is often forced to negotiate a reduction in penalties in order to obtain agreement from an employer to correct a hazard while a violation is under contest. As a result, he said, “the average current OSHA penalty is only around $1,000.”

  But Snare said: “Abatement is more than just protecting against a hazard; it is part of accepting responsibility for the violation. Mandating abatement before allowing the employer to exhaust their adjudicative process would be like asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.”

• Increased protection for whistleblowers:

  
  Michaels said the proposed changes would bring whistleblower provisions in the OSHA Act in line with whistleblower provisions for other agencies.

  “The proposed legislation would prohibit employers from discouraging the reporting of
  work-related injuries and illnesses by employees,” Michaels said. “OSHA is strongly committed to accurate reporting of both injuries and illnesses.”

  But Snare said the proposals would “create additional complicated and costly procedures for adjudicating whistleblower cases, without any evidence or justification that the existing protections available to employees under Section 11(c) of the OSH Act are somehow deficient. The CWS is also concerned with other proposals in Section 701 which are overly punitive on employers and will benefit no one, aside from trial lawyers.”

As I said in a previous blog posting, this bill would radically alter the OSHA landscape. Employers would be well advised to follow the bill’s progress closely and begin examining their safety programs in light of changes that would occur if the bill is passed.

To read the full text of Snare’s statement, click here.

For Michaels’s statementclick here.

The Education and Labor Committee is likely to vote on the bill in the next few days and the full House may vote by the end of the month.

To keep up with this bill, as well as the administrative steps OSHA is taking to step up enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

The bill would also greatly reduce an employer’s ability to delay abatement of contested violations.

Attorneys at the firm of Morgan Lewis have written an excellent article with additional details about the implications of the bill.

Morgan Lewis says, and I agree, that employers need to pay close attention to the proposed law and the impact it could have on their operations. Employers also need to be reviewing their health and safety programs in light of the dramatic changes that could come.

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.”

• Have training, audits and attempts to change behavior not yielded the long-term results you desire?
• Do you feel like the safety department is carrying most of the load?
• Are organizational responsibilities understood and people held accountable?
• Is top management integrating safety with production, quality and other major company initiatives?
• Are you searching for an answer to achieving true continuous improvement?

First, let me suggest that you look at your health and safety management system and ask the following:

1. Do you have one?
2. If so, is it integrated into the management system(s) used by top management on a regular basis?

If you can’t answer “yes” to both #1 and #2, you should consider incorporating the following principles into your operations:

• Top management is responsible for leading safety and integrating it into the business.
• A management system is the primary “tool” that allows senior executives to define organizational responsibilities and hold people accountable.
• Safety personnel are there to serve the operations end of the business. Suggest an integrated management system.

Whether you do it in-house or call in a safety consultant, thoroughly assess existing systems and processes and then construct a plan that allows top management and senior operations management to fully integrate safety into their daily business. Then you’ll be on the road to sustainable safety improvement.

We’ve seen the impact in our safety staffing operation. One Friday afternoon we were asked by a major cleanup contractor if we could find 10 safety professionals to put on the job by Monday morning. We were able to oblige.

OSHA reported this week that more than 39,000 workers were involved in the cleanup as well as 6,500 vessels. OSHA itself began deploying staff to the Gulf in late April and now has personnel at all 17 staging areas in Louisiana, Mississippi, Alabama and Florida.

Depending on their jobs, OSHA said, workers can face hazards from “heat, falls, drowning, fatigue, loud noise, sharp objects, as well as bites from insects, snakes, and other wild species native to the Gulf Coast area. Workers may also face exposure to crude oil, oil constituents and byproducts, dispersants, cleaning products and other chemicals being used in the cleanup process.”

The agency reported that it has made over 1392 site visits, covering vessels and staging areas as well as decontamination, distribution and deployment sites.

OSHA says it is also working to ensure that workers are not exposed to dangerous levels of toxic chemicals. OSHA has reviewed the BP monitoring data and has brought in a team of industrial hygienists to conduct its own independent monitoring both on shore and on the cleanup vessels.

Speaking to the American Society of Safety Engineers at the Safety 2010 meeting last week in Baltimore, OSHA’s head, David Michaels, said: “It’s an unfortunate fact that monetary penalties just aren’t enough. We believe that nothing focuses the mind like the threat of doing time in prison, which is why we need criminal penalties for employers who are determined to gamble with their workers’ lives and consider it merely a cost of doing business when a worker dies on the job.”

Later in the week, OSHA officially launched another enforcement initiative, the Severe Violators Enforcement Program.

The program, details of which were previously announced, would identify employers with repeated, serious violations, and subject them to increased inspections of the site where the violations took place as well as inspections of other sites the company may operate.

According to OSHA: “SVEP is intended to focus enforcement efforts on employers who have demonstrated recalcitrance or indifference to their OSH Act obligations by committing willful, repeated or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.”

For advice on preparing yourself for OSHA scrutiny, see my article “How to meet the challenge of greatly increased OSHA scrutiny”

You may also wish to have a mock OSHA inspection conducted at your site.

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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