Tuesday, December 26, 2006

Knock, Knock. Who's There? OSHA. OSHA Who?

This is no joking matter. When someone identifying themselves as an OSHA compliance officer shows up unannounced at your workplace and says they are there to conduct an inspection, you need to understand what to expect, what OSHA’s rights are to conduct an inspection, and most importantly, what your rights are as an employer.

The first thing to do is ask for the person’s credentials, to ensure he or she is indeed an OSHA compliance officer. You do not want to mistake a compliance officer for someone else (like a worker’s comp inspector or insurance loss control specialist), nor fall for an imposter (such as someone sent by a competitor to spy on your operations). Federal OSHA compliance officers are required to carry with them a credential that has their photo and clearly identifies them as a Federal OSHA compliance officer; do not rely on just a business card. However, those employers who are located in a State that formed their own State OSHA program (see previous blog for a list of these states) must remember that you will be dealing with a different agency than OSHA, with a different name and a different credential. So make sure you know exactly whom you should be dealing with.

The next thing to do is ask the compliance officer why he is there. The obvious answer is that he is there to conduct an inspection. The key, however, is to determine what “kind” of inspection. If you don’t ask why your company was singled out for an inspection, and just turn them loose to inspect, the compliance officer will probably make the best of the opportunity and conduct a comprehensive (wall-to-wall) inspection. This may occur even if the inspection was triggered by an employee complaint about a single alleged safety hazard. So it is very important to ascertain the reason OSHA has shown up to inspect, so that you can both agree on the scope of the inspection.

What triggers an OSHA inspection? Some companies seem to get inspected by OSHA on what seems like a regular basis, while others may go long periods of time and never be inspected. Here are some of the primary factors that trigger an OSHA inspection at your workplace.

Imminent Danger – this type inspection is OSHA’s top priority, and will be conducted if and when the agency becomes aware that one or more employee is working in a hazardous situation that subjects them to being seriously injured or killed if corrective action is not taken right away. OSHA compliance officers will address this type of situation as quickly as possible, often alerting the exposed workers that they are in imminent danger, and instructing the employer to have their workers cease the hazardous work. If for some reason the employer ignores OSHA’s warning to remove their workers from danger, then the compliance officer has to seek a compulsory order from a court to force the employer to stop.

Catastrophic Events – these events are defined as any work-related fatality, or, whenever three or more employees are admitted into a hospital as the result of a single event (such as an explosion or scaffold collapse where several people at once are seriously injured). Employers are required by law to notify OSHA within 8 hours of becoming aware of the work-related fatality or multiple admissions into the hospital; they should contact their local OSHA Area Office or call the national toll free number (1-800-321-OSHA) to make their report. Obviously, the purpose of notifying OSHA of these types of events is to give them an opportunity to investigate the company for violations of OSHA regulations while the evidence is still relatively fresh.

Two things to keep in mind about reporting catastrophic events. First, you are not required to notify Federal OSHA if the injured worker dies more than 30 days after suffering the injury or illness that causes their death (e.g.: a workers falls and is severely injured, but does not die from his injuries until more than a month later). Second, employers in some of the States that operate a state OSHA program (such as California and Utah) are required to contact their state OSHA office if only one employee (versus three) is admitted into the hospital due to a work related injury or illness. So check your state OSHA rules, where applicable, to be sure.

Employee Complaints – the reason OSHA mandates the OSHA workplace poster to be displayed at workplaces (see previous blog for poster info) is so workers understand they have a right to call OSHA to report a workplace hazard and request an inspection. OSHA first tries to determine that the worker is actually an employee of the company being reported, and if it is determined that they are, the employee is asked if they want to remain anonymous to their employer (typically they do). If the workers signs a written form (provided by OSHA) that states that the complaint is valid, then OSHA will conduct an onsite inspection, usually within 30 days, but often quicker. If the employee does not sign the statement, OSHA will sometimes treat the case as an “informal complaint”. This means OSHA may call the employer to alert them of the complaint and then fax them a copy of the alleged hazard(s), and require the company to investigate and respond to each alleged hazard in writing back to OSHA within a specified period of time.

One thing to remember about an employee complaint inspection; the compliance officer is supposed to limit their inspection to address the complaint item(s), but they might also issue citations for any violations noted in plain sight that they identify during the complaint inspection.

Referral Inspection – these inspections are triggered when someone OSHA deems a credible source alerts them to a potential hazard in a workplace. An “internal” referral often occurs when an OSHA compliance officer who specializes in “safety” issues notices a potential “health” hazard (like excessive air contaminants or noise levels) in the workplace during his safety inspection. When he returns to the area office, he will then alert the supervisor, who may then schedule a subsequent “health” inspection by an industrial hygienist who works for OSHA.

Federal OSHA also has “memorandums of understanding” with other agencies, such as the EPA. When an officer of one agency is inspecting a company and notices what they believe is a violation of the other agency’s regulations, they will contact that other agency and make a referral, which can subsequently result in a referral inspection.

Special Emphasis Program Inspections – often developed on a national basis, these inspections are designed to focus on a specific hazard (usually within a specific industry or trade) that OSHA believes is responsible a high number of workplace injuries or illnesses. OSHA identifies companies or workplaces where the hazard of concern is usually found, and then targets them to conduct an inspection that focuses on compliance with OSHA standards associated with that hazard of concern. Recent examples of special emphasis programs include inspections for compliance with standards regarding Silica, Machine Guarding on Mechanical Power Presses, and Scaffolding. As with employee complaint inspections, compliance officers can also issue citations for unrelated violations that are noted in plan sight.

General Inspections at Targeted Workplaces – in the past, OSHA would show up unannounced at a company or work-site that was considered to be in a “high hazard” industry (such as construction sites and manufacturing companies) to conduct a comprehensive inspection. The sites to be inspected were usually randomly selected by a computer program (so OSHA could not be accused of picking on a certain company). However, they often found themselves inspecting a company that had an excellent safety program and an extremely low injury rate; obviously this was not the best use of their limited resources.

Nowadays, OSHA generally utilizes a focused approach to identify companies who will be targeted for a general inspection. OSHA mails out forms annually to companies to gather their injury and illness data and the number of hours worked for the previous year, and then uses that information to calculate each company’s injury rate. Then, OSHA prioritizes those companies with the highest rates for randomly selected inspection. However, OSHA also randomly selects a few companies who report lower injury rates, to review their injury & illness records and ensure they were accurate in their reporting. This targeted approach is designed to allow OSHA to focus their limited resources at work-sites where they could potentially have the greatest impact in identifying workplace hazards that had previously gone unabated.

While the triggers for OSHA inspections listed above are not all-inclusive, they do represent the factors accounting for the vast majority of OSHA inspections. Additional information about this topic can be found on OSHA links through our company website.

The next blog will discuss company representation when OSHA does arrive to inspect, and, the pros and cons of demanding OSHA obtain a warrant before being allowed to inspect.

Sunday, November 26, 2006

Are You "Exempt" from OSHA?

OSHA has jurisdiction over workplace safety in the United States and its territories. However, when Congress passed the OSH Act of 1970 and created OSHA, a few groups were given an exemption from OSHA coverage. Here is a short list (not totally exhaustive) of those who are exempt:

1) Employees of the Federal Government – this includes people working in high hazard jobs, such as a press operator at the federal mint, members of the armed services, the ranger at the national park, and an FBI agent, are exempt from OSHA coverage. Even the federal OSHA compliance officer that comes to inspect your company for compliance with OSHA regulations is not subject to coverage by the very Act that created his or her job! Many federal agencies do voluntarily “adopt” OSHA regulations for their employees, but when push comes to shove and they are running low on funds or time, some of them are very quick to remember that they are exempt.

2) State, City & County Employees – because of prohibitions against something know as an unfunded mandate, the employees of the states, cities & counties (sometimes called public employees) are also exempt from OSHA coverage. So workers employed by a private company who are digging a ditch are regulated by OSHA’s excavation standards, but the city crew digging a ditch across the street from them is not. Like some federal agencies, many state, city & county agencies also voluntarily adopt OSHA regulations for their workers. And those States who opted to develop and administer their own State OSHA program (see previous blog for an explanation) must also include their state, city & county workers in their jurisdiction, meaning those agencies would no longer be exempt.

3) Certain Employee Groups Covered by Other Federal Agencies – for example, workers in a mine are covered by the Mine Safety & Health Administration (MSHA), and not by OSHA. There are also other work situations where other regulations could take precedence over OSHA’s, like with workers on a ship at sea, flight crews up in an airplane, and truck drivers rolling down the highway.

4) Family Members Working on Their Family Farm – technically these people are not considered employees of the farm. So even though OSHA has agricultural standards, these family members are exempt from OSHA coverage.

5) A Sole Proprietor with No Employees – if you have no employees, then you are not an employer, and OSHA only has jurisdiction over employers. There could be an exception to this exemption, however, if the sole proprietor hired temporary workers (like from a temp service) and directed their day-to-day activities.

6) Volunteers – if someone is working voluntarily for a company and receives no pay or compensation, they would not be considered an employee. Therefore, they do not fall under OSHA’s jurisdiction.

There is a general misconception that “small” employers are exempt from OSHA jurisdiction. While OSHA generally will not conduct a general scheduled OSHA inspection at a company with fewer than 10 employees, that company is not exempted from OSHA coverage. The small employer must still comply with all OSHA rules and regulations that apply to their workplace, and the company is also subject to receiving an OSHA inspection in certain situations, such as when an employee complaint is filed or a work-related fatality occurs. In certain cases, the small business may be exempt from implementing specific OSHA standards, like those requiring an OSHA injury/illness log or developing a written emergency action plan, but they must still comply with all other applicable standards.

My next blog posting will deal with the factors that trigger an OSHA inspection.

Thursday, October 05, 2006

The Origin of OSHA and their Standards

Where did OSHA come from? The United State Congress, in response to the high number of injuries, illnesses, and fatalities experienced by workers in American workplaces, passed legislation titled the Occupational Safety & Health (OSH) Act of 1970. It was signed into law by the President in December of 1970, and became effective in April of 1971 (and you thought the only thing we had to remember Richard Nixon for was the Watergate scandal). To help implement this new Act, Congress authorized the creation of a new federal agency, the Occupational Safety and Health Administration (OSHA).

All of the States and U.S. territories (such as Puerto Rico, The Virgin Islands, and Guam) were given an option; either participate in the Federal OSHA system, or create their own State OSHA program. However, to get their State OSHA approved by the Fed’s, they had to have safety & health standards at least effective as Federal OSHA’s (most just adopted the Federal standards verbatim). And they also had to extend coverage to their State, municipal, and county workers who were otherwise exempted from coverage by the OSH Act. About half the States and territories have since opted to develop a "State plan" OSHA program. To confuse matters worse, some states have a "hybrid" approach to OSHA, like the State of Tennessee, who has a State OSHA program with jurisdiction over general industry & construction operations, but leaving Federal OSHA with jurisdiction over the martime industry in their state!

You may click here to see a list of State OSHA programs, with a link to their web-sites. Also see our previous blog entry regarding mandatory OSHA posters for Federal & State OSHA programs.

One of Federal OSHA’s first responsibilities as a new agency was to create health and safety standards to regulate workplaces. OSHA separated their standards into several "parts". Some of the major parts of the OSHA regulations are part 1904, which deals with injury & illness record-keeping, part 1910 dealing with general industry workplaces, and part 1926 which pertains to construction. There are also OSHA standards for the various Maritime industries and Agriculture. Each part is then broken down further into sub-parts (based on the letters A through Z), that are based on a particular compliance topic such as Ladders, Machinery Guarding, Excavations, or Hazardous Chemicals. Click the appropriate link to be directed to the Federal OSHA 1910 General Industry standards or the OSHA 1926 Construction standards.

To develop their regulations, OSHA did not sit down and start writing standards from scratch. Instead, they were directed by Congress to adopt as their standards portions of some national "consensus" standards in effect at the time that affected health and safety. So OSHA adopted portions of the National Electric Code (NEC) of 1970, multiple American National Standards Institute (ANSI) standards related to things such as machinery guarding, ladders, and safety glasses, and many, many other consensus standard too numerous to list. So what we originally had for OSHA standards was really a conglomeration of many pieces and parts of a multitude of consensus standards. As you can imagine, this can sometimes make it difficult to seek out and find the precise OSHA standard that actually applies to a specific activity or condition.

One very important thing to remember about the original source documents is that many of them are updated every few years, but the OSHA standards based on them are more than likely STILL based on the older versions of the source standards! That’s because OSHA standards have to go through a very complex and lengthy process to be revised, while consensus standards are routinely reviewed, updated, and published by committees from the organizations who originally created them. As a result, it is not uncommon to have portions of an OSHA regulation that are now obsolete as far as current technology and/or practices are concerned, but they are still the law today.

For OSHA to update an existing standard, or to issue a new one, they must follow a process that involves drafting a proposed standard, publishing it in the Federal Register so the regulated public can review it, and gathering comments about the proposed standard from interested parties. After that process, OSHA may (or may not) issue a final rule in the Federal Register (State OSHA programs have six months to follow suit). The first major standard OSHA developed from scratch and shepherded through this process is their Hazard Communication standard (1910.1200), which became effective in 1984; no wonder this is one of the most cited OSHA standards year after year! Recently, OSHA has employed with some success a strategy called "negotiated rulemaking", where they involve affected groups in developing the draft standard, to speed up the acceptance process.

One last note about OSHA standards in general. You must be aware of which OSHA regulations apply to your workplace! Some of the State OSHA programs have standards that are the same as Federal OSHA’s, some have standards that are just slightly different from Federal OSHA’s, and a couple of States (such as California’s Cal-OSHA and Michigan’s MI-OSHA) have OSHA standards are significantly different from Federal OSHA’s. So make sure you are using the correct "playbook"! You may click here for links to the various State OSHA program regulations.

In a future OSHA blog, we will discuss the OSHA inspection process. In the meantime, please let us know any experiences you’ve had with significantly different State OSHA standards you were not aware of that caused you to receive a citation from your State OSHA program.

Thursday, September 21, 2006

OSHA Posters - Federal vs State Programs

You are probably aware that approximately half of the states in the USA have opted to develop their own state OSHA program. That means that employers in one of these states will not be inspected by Federal OSHA compliance officers, but instead will be visited by compliance officers from their state OSHA.

What you may not be aware of is that many employers in these "state plan" states often receive a citation because they have the federal OSHA workplace poster displayed in their workplace, and not the poster from the state OSHA program! Has this ever happened to you? That's right, you have to have your state OSHA's posting (in those states where applicable).

If you are not sure which OSHA poster you need (federal or state OSHA) in your workplace, you can visit our website and download a free copy of the federal and/or state OSHA posters. Or you can contact the state OSHA program and request a copy to be mailed to you. Just remember that the poster must be displayed somewhere (like an employee bulletin board) that the employees have access to it during the workday. And if any workers report to a different site than at your main office for work (like at a construction site), then a copy of the appropriate OSHA posting must be displayed there as well.

I will address the different State OSHA programs and how some of them have standards that are significantly different than federal OSHA's standards in a future posting.

Curtis Chambers, CSP
OSHA Pro's, Inc.