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1) OSHA asks new rules
on employer safety programs; ups ante on ergonomics
By Jim Stanley
President, FDRsafety
and former Deputy Assistant Secretary of Labor for
OSHA
OSHA is
launching what agency head David Michaels described Monday as a "long overdue"
initiative on injury and illness prevention and plans to increase enforcement
on ergonomics. Both initiatives are likely to be extremely controversial.
OSHA is also
moving plans to create a combustible dust standard to its long-term regulatory
agenda, further extending what has already been a long process. I expect this
means the standard is not in our immediate future.
These initiatives
and other items OSHA discussed Monday will provide extensive fodder for future postings
on our blog at www.fdrsafety.com/blog. But here are the highlights:
Injury and Illness Prevention Program
The new
program would require employers to "find and fix" the hazards in their
workplaces. The program "does represent a major paradigm shift for OSHA,"
Michaels said in a webcast.
"Employers
and others must 'find and fix' violations - that is, assure compliance - before
a Labor Department investigator arrives at the workplace," Michaels said.
"Employers and others in the Department's regulated communities must understand
that the burden is on them to obey the law, not on the Labor Department to
catch them violating the law. This is the heart of the Labor Department's new
strategy.
"We are
going to replace 'catch me if you can' with 'Plan/Prevent/Protect,'" Michaels
said.
Here is what
OSHA said about the proposed program as part of its announcement of its spring
regulatory agenda:
"Plan"
"The Department will propose a requirement that employers and
other regulated entities create a plan for identifying and remediating risks of
legal violations and other risks to workers - for example, a plan to search
their workplaces for safety hazards that might injure or kill workers. The
employer or other regulated entity would provide their employees with
opportunities to participate in the creation of the plans. In addition, the
plans would be made available to workers so they can fully understand them and
help to monitor their implementation."
"Prevent"
"The Department will propose a requirement that employers and
other regulated entities thoroughly and completely implement the plan in a
manner that prevents legal violations. The plan cannot be a mere paper process.
The employer or other regulated entity cannot draft a plan and then put it on a
shelf. The plan must be fully implemented for the employer to comply with the
'Plan/Prevent/Protect' compliance strategy."
"Protect"
The Department will
propose a requirement that the employer or other regulated entity ensures that the plan's objectives
are met on a regular basis. Just any plan will not do. The plan must actually
protect workers from violations of their workplace rights.
"Employers and other regulated entities who fail to take
these steps to address comprehensively the risks, hazards, and inequities in
their workplaces will be considered out of compliance with the law and,
depending upon the agency and the substantive law it is enforcing, subject to
remedial action."
Ergonomics
OSHA earlier
announced that it is proposing to revise its recordkeeping regulation by restoring a column on the OSHA Form 300 to
better identify work-related musculoskeletal disorders (MSDs). The agency has
said that the proposal was not a prelude to proposing a new standard on
ergonomics. A previous attempt to create such a standard failed early in the
Bush administration.
But Michaels said Monday, "In addition to adding an
MSDS column to the 300 log, OSHA will be increasing its enforcement of
ergonomic hazards under its General Duty Clause. We are continuing to consider
additional approaches to addressing ergonomic hazards."
Combustible Dust
OSHA also
said yesterday it was moving a combustible dust standard to its long term
agenda. Here is what Michaels said about that:
"Combustible
dust is a priority. However, this is a very complex rule and we are actively
doing the necessary research to support this rule. The only reason this is in a
long-term action is because the next step, SBREFA Panel Review, is a year out.
April 2011 is as soon as we can do the necessary work to initiate a SBREFA
review."
Jim Stanley is president of FDRsafety
and former deputy assistant secretary of labor for OSHA. FDRsafety assists companies
in creating safety plans and conducts mock OSHA audits to assure compliance
with federal rules. For more information, contact Jim at jstanley@fdrsafety.com or (513) 317-5644.
Worried about the
possibility of an OSHA inspection? Here's what to do to be ready.
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2) OSHA plan to increase
penalties surfaces in memo from Michaels to OSHA regional officials
On April 22,
David Michaels sent a letter to OSHA's 10 regional administrators and the
subject was administrative enhancements to OSHA's penalties. The penalty changes
look like they will become effective in the next several months.
Point 1: The time frame for considering an
employers' history of violations will expand from the current three years to
five years. If an employer has been inspected in the last five years and had no
serious, willful or repeat violations and hasn't had a failure-to-abate notice,
the employer will receive a 10 percent reduction for history. Otherwise there
will be no 10 percent reduction in penalties.
Point 2: If an employer has been cited by
OSHA for any high-gravity, serious, willful or repeat violations, or has been
cited for a failure to abate notice in the previous five years, they will
receive a 10 percent increase in their penalty, up to the statutory maximum.
Point 3: The time period for repeated
violations will be increased from three to five years.
Point 4: Area directors are authorized by
this memo to offer up to a 30 percent penalty reduction to employers at an
informal conference. Any reduction over 30 percent has to be approved by the
regional administrator. Area directors will be authorized to offer an employer
with 250 or fewer employees an additional 20 percent reduction if that employer
agrees to retain an independent safety and health consultant.
Point 5: Where circumstances warrant, at the
discretion of the area director, high-gravity serious violations related to
standards identified in the Severe Violator Enforcement Program (SVEP) will no
longer need to grouped or combined, but can cited as separate violations, each
with its own proposed penalty.
Point 6: OSHA will be adopting a penalty
determination that provides for gravity-based penalties between $3,000 and
$7,000 for serious violations.
Point 7: No size reduction will be applied to
employers with 251 or more employees.
Point 8: The current "good faith" procedures
in the field operations manual will be retained. The 15 percent Quick Fix
reduction, which is currently allowed as an abatement incentive program meant
to encourage employers to immediately abate hazards found during an inspection,
will also be retained. However, the 10 percent reduction for employers with a
strategic partnership agreement will be eliminated.
Point 9: The minimum proposed penalty after
history, size and good faith adjustments will be increased to $500.
Dr. Michaels
believes that these changes will generally increase the overall dollar amounts
of all OSHA proposed penalties. He believes that the average penalty for a
serious violation will increase from approximately $1,000 to an average of $3,000
to $4,000. OSHA hopes that higher penalty amounts will provide a greater
deterrent and further encourage you employers to furnish a safe and healthful
workplace for all of your employees.
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ABOUT FDRsafetyAt the heart of FDRsafety is this simple idea: Extensive expertise and experience bring the best results. FDRsafety is led by two nationally recognized, long-time leaders in safety: Fred Rine and Jim Stanley. Each has decades of experience improving occupational safety and health performance at companies of all sizes, including complex multi-billion dollar, multinational organizations. FDRsafety can meet your needs for a wide range of safety and health services, including training, OSHA compliance, safety staffing and expert witnesses. Contact usto learn how we can help you reduce accidents, meet federal, state and local legal requirements, reduce costs, and most importantly, protect your greatest assets - your employees.
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