A Trend of Strict Enforcement

To improve safety and health, OSHA continues to prefer swinging the stick over dangling the carrot.

With OSHA’s 2014 fiscal year more than 50% complete (its 2015 fiscal year begins October 1), and with due respect to Led Zeppelin, the song remains the same. Enforcement continues to be OSHA’s emphasis, and with ever-decreasing attention (and funding) being given to cooperative programs, such as the Voluntary Protection Program. And, while many private-sector employers are tightening their belts, OSHA’s enforcement efforts are backed by full coffers — from a hefty US$552 million in 2014, OSHA seeks US$565 million for 2015. This includes US$3 million more for federal enforcement of the OSHA Act, as well as US$4 million more to handle the Whistleblower Protection Program.

Some figures illustrate this enforcement approach. OSHA has increasingly encouraged the filing of employee complaints, with the result that, already in 2014, 28% of all inspections were complaint based, in contrast to 24% in 2013. Moreover, the average penalty for a serious item in 2014 has risen to US$2,000, from US$1,897 in 2013. In addition, OSHA continues to ally with organizing labor by such moves as taking the position that, during inspections of nonunion employers, outside union representatives can be allowed to walk around the worksite with the inspector. This contradicts both regulations and OSHA’s own Field Operations Manual, which clearly state that only an “employee” may represent the interests of the employer’s workforce during an inspection. Although sure to be challenged in court, it is yet one more illustration of OSHA’s aggressiveness.

OSHA continues to ally with organizing labor by such moves as taking the position that, during inspections of nonunion employers, outside union representatives can be allowed to walk around the worksite with the inspector.

OSHA energetically continues to employ its controversial Severe Violators Enforcement Program (SVEP). The SVEP contains many punitive elements, such as OSHA’s utilization of aggressive press releases publicly tarring an employer as a “severe violator,” the entry of the employer on a public log containing the names of all severe violators, mandatory follow-up inspections at both the cited workplace and other workplaces within the same company, and enhanced settlement provisions, such as mandating abatement measures across the entire company and the hiring of third-party consultants to assess workplaces and report to OSHA. One serious problem with SVEP is that many of these punitive steps are implemented before an employer has even been found liable by a court for any violations. The mere issuance of a citation meeting the relatively low-level criteria for inclusion on the SVEP triggers many of these acts. And, after having no published criteria for getting off this “bad actor” list, OSHA’s recently released criteria provide no clear guidance as to how to escape, either. In short, OSHA’s implementation of SVEP flouts basic notions of fair play and due process under the U.S. Constitution.

In addition, OSHA continues its official campaign against “Employer Safety Incentive and Disincentive Policies and Practices.” In other words, OSHA is scrutinizing employer safety-incentive programs, because the agency believes they constitute unfair discrimination and can discourage the accurate reporting of workplace injuries and illnesses in violation of OSHA’s recordkeeping requirements. So, awarding a gift certificate to mechanics with no accidents for 12 months? According to OSHA, this is really telling employees not to report injuries and violating the law. Posting a sign in the office stating it has been 263 days since the last accident? To OSHA, this is blaming workers for accidents and, again, discouraging them from reporting them. Disciplining any employee who is injured on the job, no matter the circumstances? OSHA believes this is, yet again, discouraging injury reports.

Given this attitude, it is imperative that employers with safety-incentive programs in place review them to ensure they cannot be construed as discouraging accident reports or otherwise “blaming the worker” for accidents. The best fix is to have a written safety program in place with rules, training, safety inspections of workers and consistent (not arbitrary) discipline for workers violating the rules (with a clear description of the violation and reason for discipline). This is the preferred way by which to avoid accusations of violations of OSHA’s discrimination provisions.

With the Affordable Care Act increasing the pace of full-time employees being replaced by temporary staff, OSHA continues to make temporary worker safety a top priority, having launched its Temporary Worker Initiative. By this, OSHA intends to do the following:

1. Protect temporary workers from workplace hazards
2. Ensure staffing agencies and host employers understand the act’s requirements regarding temporary workers
3. Gather information faced by temporary workers in their workplaces

With aggressive enforcement being this administration’s favorite tool, OSHA’s director of enforcement programs issued a memorandum to OSHA’s regional administrators directing them to focus on the safety of temporary workers. As a result, inspections and citations involving staffing agencies and the use of temporary workers skyrocketed in 2013-2014. OSHA maintains that both the staffing agency and the leasing employer have joint responsibility regarding temporary worker safety. OSHA expects an employer will treat temporary workers like all of its other workers in terms of training and safety and health protections.

Another effort relating to enforcement is OSHA’s recent proposal to make all workplace injury and illness information publicly available. Under this rule, employers with more than 250 employees would be required to electronically submit their illness and injury data. This will allow OSHA to make the reports public and allow companies to compare their numbers against their competitors.

The concern here is that, given the approach taken by this agency in other contexts, the data will be used to shame employers and damage their reputations. Given that injuries can often result from employee misconduct or flouting of work rules, the numbers could be taken out of context to make an otherwise safety-conscious employer look bad.

In short, with Dr. David Michaels still at the helm, the agency shows no sign of emphasizing compliance assistance over aggressive enforcement. With that in mind, an employer’s basic due diligence calls for assessing operations to determine safety and health vulnerabilities. The best place to start is with OSHA’s list of most frequently cited violations. In 2013, the top 10 most frequently cited standards were fall protection (1926.501), hazard communication (1910.1200), scaffolding (1926.451), respiratory protection (1910.134), electrical wiring methods (1910.305), powered industrial trucks (1910.178), ladders (1926.1053), lockout/tagout (1910.147), electrical general requirements (1910.303) and machine guarding (1910.212). Each of those presents concern for elevator/escalator service and construction companies. OSHA inspectors are playing close attention to the top-ten list, and it is imperative that a safety program contain work rules and training relevant to any work involving those topics.