Reade about pending legislation that would give OSHA new ammunition against employers.

The warning signals are loud and clear: The Department of Labor (DOL) under Secretary Hilda Solis is getting tough on workplace safety.

“Workplace enforcement and safety is not only our responsibility, it’s our moral obligation,” Solis told an AFL-CIO audience in September. “That means the DOL will once again be back in the enforcement business.”

After years of taking a conciliatory, “let’s work together” approach to compliance with federal safety regulations, the new DOL emphasis is on citations and fines. In her AFL-CIO speech, Solis said that between July and September OSHA performed 689 inspections and issued nearly 1,100 violations that resulted in $1.6 million in fines. “And there is still so much work to do,” she added.

The following month Solis announced a record $87 million fine against BP Products North America for failing to comply with a 2005 settlement agreement involving a refinery explosion that killed 15 people and for 439 new willful violations at the same plant.

“Let me be clear: This administration will not tolerate disregard for our laws,” Solis said at a press conference announcing the fine.

Armed with a Government Accountability Office (GAO) report alleging widespread underreporting of work-related injuries and illnesses, OSHA inspectors are under orders to aggressively scrutinize employer records. In addition, OSHA is pushing ahead on new rules in several key areas, including combustible dust, which affects a wide range of industries (see “Dust Up,” p. 29). An increased budget will allow the agency to augment the efforts with more inspectors and rulemakers.

“You’ve got to give them credit, they are not trying to hide anything,” says Edwin Foulke, a partner at Fisher & Phillips who headed OSHA during the second Bush administration. “They are very frank about saying they are focused on enforcement and rulemaking. They are also putting their money where their mouth is.”

Broken Record

The inspectors initially will focus on record-keeping–a mandate issued after the October 2009 GAO report contended that employers do not report all workplace injuries and illnesses out of concern that their workers compensation insurance costs will rise. Employees often collaborate in the underreporting, the GAO added, fearing they will lose their jobs, be required to take a drug test or lose incentives such as bonuses tied to keeping injuries low.

OSHA requires employers to record every work-related injury or illness that results in lost work time or medical treatment other than first aid. In its most startling statement, the GAO report said one-third of the surveyed occupational health practitioners reported pressure by employers or workers to limit medical treatment to first aid in order to hide a reportable work-related injury.

The GAO criticized OSHA’s processes, particularly its failure to interview workers to verify recorded incidents. Two years commonly elapse between an injury and an OSHA records audit, the GAO said, and by that time workers forget the details or leave the company.

In response, OSHA announced a National Emphasis Program (NEP) on record-keeping that will target employers in injury- and accident-prone industries whose reported numbers are low.

“OSHA will inspect companies with a low [injury] rate based on the assumption that they underreported, even though they could have spent millions on safety programs,” which are the real reason for the apparently low numbers, Foulke says.

Andy Rolfes, a member at Cozen O’Connor, says most employers try to comply with record-keeping rules. He rejects the assumption that giving employees incentives for low injury rates pressures them to underreport injuries.

“That troubles me because it is one of those damned if you do, damned if you don’t situations,” Rolfes says. “An employer who is trying to incentivize good behavior and safety will have that culture viewed negatively.”

Wake-Up Call

While the agency is specifically targeting record-keeping in the poultry and construction industries, the NEP is a wake-up call for all employers.

“Record-keeping is a year-long national emphasis program that will target specific industries,” Rolfes says. “But everybody should be aware of it, because when you have an [OSHA] compliance officer on site, they will be looking at your records to make sure you are reporting things properly.”

Beyond recordkeeping, employers should expect a more aggressive OSHA.In the past, following a workplace accident, some OSHA area directors would exercise their discretion not to issue a citation, according to Steve McCown, a shareholder at Littler Mendelson.

“They would say, ‘I don’t want this to happen again. Let’s figure out a way to abate this situation,’” McCown says. “And if you agreed to abate and conduct extensive training, they wouldn’t cite you, or would withdraw a citation. That doesn’t happen anymore. They just don’t do it.”

OSHA may also take a more aggressive stance on penalties, citing more companies for willful or repeat violations, which carry fines of $70,000 per violation (as opposed to $7,000 for a serious citation). In addition, the rules governing personal protective equipment (PPE) have been clarified to allow OSHA to issue a citation for each employee who doesn’t receive equipment and training on its use, rather than just one citation per workplace, says Patricia Ogden, a partner at Barnes & Thornburg.

“Deterrence is the goal, and the agency believes that high penalties will deter,” she says.

Proactive Policies

A proactive approach to safety can protect an employer from those large fines. A solid strategy starts with a plan for handling an OSHA inspection.

“It is not unusual for an employer who is unprepared to have issues come up [during an inspection] and for the investigation to be expanded beyond what was supposed to be the scope,” Ogden says. “Thinking through how to respond and handle those investigations is one proactive thing employers should be focused on.”

Employers should also revise their employee communications program to include any new hazards, Ogden says.

Training facility management and workers on OSHA compliance and company safety policies is also crucial.

“Your defense [against a citation] is that you had a policy, trained on the policy and monitored the workplace to see if the policy was followed,” Foulke says. “A majority of citations are withdrawn or vacated because of this defense.”

Should the case proceed, proper policies will also protect the employer.

“When it comes time for your front line supervisor to give a sworn statement or a deposition, he or she needs to say, ‘I have the power not to have any employee in any situation that is not safe,’” McCown says. “And then the hourly worker needs to say the
same thing.”