Business Community on Notice with OSHA

From the Fort Worth Business Press:

Karen Coomer Denney and Matthew Deffebach

When it comes to Occupational Safety and Health Administration (OSHA) enforcement, the business community has been placed on notice. Here is what Hilda Solis, the secretary of labor, told a convention of safety engineers: “Make no mistake about it: The Department of Labor is back in the enforcement business.” Companies that deal with OSHA know all too well that the agency is doing more than just talking the talk.

While OSHA is hitting some turbulence with its regulatory agenda due to the Republican swing in the U.S. House of Representatives, the agency has not skipped a beat when it comes to enforcement. OSHA enhanced its efforts in 2010 by adding more than 100 inspectors and exceeding its inspection goals. In the 2010 fiscal year, OSHA conducted nearly 41,000 inspections, including 6,600 health inspections. During these inspections, OSHA cited 96,742 violations and classified a significant majority (77 percent) of these alleged violations as “serious,” including alleged violations by businesses in Arlington, Fort Worth, Grapevine and Hurst.

Make no mistake about it, now is the time to shore up safety compliance. OSHA means business. When it comes to enforcement in 2011, here are three things your business can do now to help enhance compliance and reduce exposure if OSHA comes calling.

First, review the records. Aside from public sector entities, almost every business in Texas is subject to OSHA. When it comes to keeping records of injuries and illnesses, unless your business has ten or fewer employees or is considered a “low-hazard” industry (such as smaller retailers, banks and similar office environments), then you need to be keeping records in the OSHA 300 logs.

After launching a National Emphasis Program (NEP) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance. It is not uncommon now to see fines exceeding $20,000 in recordkeeping cases. Indeed, a manufacturing company in Texas was cited last year with fines over $1 million for allegedly hiding work-related injuries and illnesses.  The NEP, which initially focused on high-hazard establishments selected for inspection with seemingly inconsistent low injury/illness rates, was temporarily suspended while the agency re-examined the targeting criteria. The NEP expires February 2012.  Even if your organization is not included in the NEP, management should monitor carefully the recordkeeping compliance climate in which OSHA is currently operating.  David Michaels, assistant secretary of labor for OSHA, has reiterated OSHA’s general commitment through Non-NEP inspections to ensure that recordkeeping is accurate.  In turn, those in charge of workplace safety should carefully review and audit their recordkeeping procedures and OSHA 300 logs for compliance with OSHA’s Section 1904 regulations.

Second, critically assess the potential hazards in the workplace. OSHA enforces hundreds of standards and their sub-parts that regulate construction and “general” (non-construction) industries. The majority of these standards have triggers that apply based on the workplace assessment done by the business. In our experience, OSHA inspections routinely reveal that some assessment was not conducted or was inadequate.

For example, the Personal Protective Equipment (PPE) standard requires an initial assessment of whether hazards are present or are likely to be present in the workplace that necessitate the use of PPE.   Proactively assessing workplace hazards now may ease the pain of compliance later, especially given OSHA’s major regulatory agenda item for 2011, the controversial Injury and Illness Prevention Program rule (or I2P2).

The full details of I2P2 are not clear, but Assistant Secretary Michaels indicated the rule would create a standard requiring businesses to identify and correct workplace hazards before any injuries or illnesses occur. This would mean a potential burden on businesses to seek out and destroy hazards that may not otherwise surface until an incident has occurred.

Third, adopt a strong culture of enforcing workplace safety rules and disciplining employees for infractions. No business can be 100 percent compliant with all the nuances of the OSHA regulations, but an entity should aggressively enforce violations when discovered and take appropriate steps to ensure compliance. Companies often fail to prove the defense that an employee acted counter to company policy – the “unpreventable employee misconduct defense” – as the defense requires actual and demonstrated disciplinary enforcement. This means the employer must walk the walk when it comes to discipline if it wishes to avoid liability for the unpredictable mishaps of a rogue employee.

Further, a strong culture of safety enforcement helps to reduce the exposure to the more problematic OSHA citations for willful infractions, failure to abate (or correct) violations, and repeat actions.

In this regard, OSHA is expected to dedicate more resources toward its Severe Violator Enforcement Program (SVEP). SVEP, which began in 2010, focuses on inspections for businesses that “have demonstrated indifference to … OSH Act obligations by willful, repeated, or failure-to-abate violations.” Businesses subject to the SVEP should expect enhanced follow-up inspections as well as the troublesome notion of nationwide inspections of related worksites.

By taking a hard look at safety compliance now, businesses may remove some of the sting when OSHA arrives at the doorstep. The secretary of labor has spoken. It is up to the business community to listen.

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Karen Coomer Denney of Fort Worth and Matthew Deffebach of

Houston are partners in the Labor and Employment Practice Group of Haynes and Boon LLP.  They recently helped lead the Fort Worth Chamber of Commerce’s 21st Annual Employment Law Update.