Jesse Brazzell, CHST
Manager Safety Services
You’ve probably seen a Western movie or two in which a new sheriff arrives in a lawless town and immediately makes his presence known. His goal is usually twofold: to make the residents feel safe again, and to give notice to the evildoers.
Our nation has a new administration, and we’ve seen several ways in which it has announced its arrival and strategy for moving forward. One of the most recent actions is likely to have an impact on the way you do business.
This spring, the Assistant Secretary for Occupational Safety and Health issued a series of memoranda to OSHA’s regional administrators. While government memoranda might not be on your preferred reading list, you’d be wise to familiarize yourself with the contents of those memos and the message they sent. In short, they’re a notification that OSHA’s approach to enforcement is undergoing a significant change – something our Safety Advisors are already seeing in the field.
In my experience, OSHA often gets a bad rap from business owners. Our Safety Advisors interact with theirs regularly, and we share the same ultimate goal: to ensure that workers go home in the same shape in which they arrived at their jobs. We’ve found that nearly all of the folks from OSHA are reasonable people who will take the time to consider a client’s situation and efforts before making a decision about how to handle a potential safety violation.
However, the memos suggest that Washington is turning up the heat on safety inspections and increasing the fines for violations. It also appears that the agency’s new leadership is taking some of the discretion away from the state-run agencies that carry out much of the work.
If your workers are staying busy, congratulations, because not many of your peers can say the same thing. But the downside to having plenty of work underway is that it increases the chances that your worksites will be selected for inspections. With pressure for more inspections, and fewer projects underway, the odds aren’t in your favor.
Already, our clients are seeing more inspections, and the inspectors are digging deeper than before. For example, in the past, an inspector might have asked for proof that a worker received safety training by asking to see a completed card. More often than not, the card would suffice as proof. Now, they’re more likely to delve into who performed the training, their qualifications, and the adequacy of the training materials that were used.
The new policies allow inspectors to look at your history for five years, instead of three years for violations. The good news is that if your record for the past five years has been clean, current fines may be reduced. Conversely, a violation five years ago could increase the amount of fines you face today. Additional reductions may be available to smaller employers and to companies that have demonstrated good-faith efforts in developing a safer workplace.
The minimum proposed penalty for serious violations increases to $500. Violations for something as simple as failing to put up required posters will increase to $250, if OSHA had previously provided them. One of the memos says that the average penalty for a serious violation will increase from $1,000 currently to around $3,000 to $4,000, and that OSHA hopes these higher amounts will provide a bigger deterrent. In addition, the policies place limits on how much an Area Director can reduce penalties without approval from his or her Regional Administrator.
Training is also under a stronger microscope, particularly as it relates to workers who are not native English speakers. Suppose your company employs several workers whose native language is Spanish. When the inspector looks at your safety policy, don’t be surprised if he or she asks if your policy is also available in Spanish. Simply having the required jobsite posters in Spanish isn’t enough anymore. You also need to be able to provide proof that you’ve supplied Spanish-language training and training materials.
One other change is OSHA’s attitude toward unpreventable employee misconduct as a defense strategy. In the past, if a worker did something unsafe that caused an injury, and you could verify that you have a good policy, effective training, self-inspections, and clear discipline, OSHA might consider the situation as unpreventable employee misconduct instead of blaming you. Not anymore. The new administration appears to be working to lessen the usefulness of this strategy. That means your supervisory personnel need to be even more vigilant and willing to correct inappropriate behavior.
Some observers suggest that the increases in inspections and higher fines may be related to government’s current need for revenue. Whether or not that’s the case, don’t expect fines to be deferred or reduced as they may have been in the past. And don’t assume that this won’t affect you. Remember that an inspector can nearly always find some type of violation.
What should companies do? If you’re already doing everything you should and documenting it carefully, relax. The only changes you’ll be likely to see are more frequent inspections and requests for deeper looks at more of your documentation. But if you’ve been cutting corners or keeping only minimal documentation, you’re setting yourself up for additional scrutiny and maybe even fines.
No, worker safety rules have not changed dramatically – it’s the enforcement that’s become more aggressive. Whether or not there’s a new OSHA in town, the OSHA you know is now being pushed to enforce those rules more aggressively, and you may pay the price.