The Occupational Safety and Health Administration (OSHA) is raising its penalties to match the rate of inflation marking the first increase in penalties since 1990.
The interim final rule was published July 1, 2016, and is based on the Federal Civil Penalties Inflation Adjustment Act Improvements Act which became law in November 2015.
OSHA invites public comment for a 45-day period after which clarifying statements will be followed by a final rule. The rule will be in effect during the comment period. Civil penalties have remained unchanged since 1990, which means a 78% increase in maximum and minimum violations for penalties assessed after August 1, 2016 for associated violations assess after November 2, 2015.
This results in serious violations that maxed out at $7,000 per violation can now cost up to $12,471 per violation. Willful or Repeated violation penalties have gone up from $70,000 to $124,709.
The Department of Labor (DOL) has released a fact sheet with more information
This increase isn’t a one-time catch up, agencies are also directed to adjust their penalties for inflation each year. The stated purpose of this adjustment is to maintain the deterrent effect of civil monetary penalties.
This act also affects penalties administered by the Mining Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), Office of Workers’ Compensation Programs (OWCP), Wage and Hour Division (WHD), and the Department of Homeland Security (DHS). A chart of each agency’s adjustments can be downloaded.
Workplaces are feeling the effects of both medical and recreational marijuana legalization. These new laws are making it more difficult to discipline someone who tests positive for marijuana. Ambiguous language protects impaired drivers from prosecution and makes it hard for employers to prove impairment at work.
Unlike alcohol, a test that shows level of marijuana impairment is not available. Instead a person can test positive weeks after using marijuana. One alternative approach to simply banning marijuana use as a component of the company drug and alcohol policy is to cover impairment in the safety policy under fitness for duty.
Start off by requiring employees disclose when they start taking any drug that causes impairment when working a safety sensitive job. This can be marijuana or a cold medicine, and the employee doesn’t have to disclose the drug or medical condition.
Be sure to update all job descriptions to define all safety sensitive jobs in compliance, by just listing essential job functions. Have a policy that states when an employee works in a safety sensitive job they should be able to work in a constant state of alertness and in a safe manner, and disclose when they have taken an impairing effect prescription or other substance.
Then the employer has the right to make a fitness for duty determination or send the employee to an occupational doctor for a fitness for duty evaluation with a copy of the job description. If it comes back that they are impaired and didn’t tell you, then you can manage that under your safety policy, and not your drug policy.
Make sure that all employees have a copy of the written company policy and education on drug and alcohol abuse that includes where to get more information. Supervisors need recurrent training on the effects of drugs and alcohol and how to determine reasonable suspicion.
Everybody needs to know the company position on medical and recreational marijuana and other prescription drug use through a consistent and proactive policy that includes appropriate testing.
OSHA has a full slate of objectives coming up for 2016 and beyond. Here is a brief look at safety issues on the horizon.
OSHA has outlined how the General Duty Clause will be used to cite exposure limits beyond the Permissible Exposure Limits (PEL) to more protective occupational exposure limits based on industry practices, such as the ACGIH Threshold Limit Values (TLV), and the NIOSH Recommended Exposure Limits (REL).
OSHA is looking at rules on infectious diseases based on NIOSH guidelines that will directly affect hospitals, but could also impact any subcontractor working at a hospital.
The last few years, OSHA has fielded enough variance requests for computer based lockout tagout controls that they are creating guidance on the matter. OSHA wants to ensure that these computer systems will lockout the hazard 100 percent of the time and there is a way to tag and sign off on it.
The current Powered Industrial Trucks regulation is recognized to be outdated with several new classes of trolleys, trucks, and pull along tugs being used and an update may come in the last quarter of the year.
Process Safety Management (PSM) is going through a revision. PSM is a large program that mostly guides how to handle hazardous materials in the petrochemical industry.
The ongoing combustible dust revision dust isn’t going to be a factor any time soon because attention is currently focused on impending silica regulation. Since silica dust is generated through cutting and grinding and rarely monitored, many employers will be affected,
The update to the Walking Working Surfaces regulation 1910.23 based on the Construction Fall Protection regulation with a four foot threshold is impending. This may affect a lot of maintenance work, roof repair, and light installs.
Regarding the new Confined Spaces for Construction, heat will be considered an environmental condition that will qualify a confined space into a permit required confined space (PRCS). Also expect that assessing a confined space and a pre-entry rescue plan will be a consideration.
Temporary workers are going to continue to be an emphasis in the upcoming year, focusing on ensuring they are trained to the same level of permanent employees and are being given Personal Protective Equipment (PPE).
An update to the guidance for the Safety and Health Management System is coming out, which is similar to the attempted Industry and Illness Prevention Program (IIPP) regulation. This could eventually affect how compliance officers will look for willfulness violations in citations.
OSHA penalties will increase for the first time since 1990, and are set to increase annually beginning August 1, 2016.
The Bipartisan Budget Act of 2015 that President Obama signed into law on November 2, 2015 contains the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 which outlines the increases.
The new law requires the Occupational Health and Safety Association (OSHA) to raise its penalties to match inflation rates, bringing it in line with other governmental organizations like the Environmental Protection Agency (EPA).
The initial increase that OSHA must enact by August 1, 2016 cannot exceed the Consumer Price Index (CPI) inflation rate from 1990 to 2015 or 150 percent of current penalties. The new legislations allows OSHA to minimize the increase in penalties by less than the maximum amount if the organization determines the adjustment will have negative economic or social impact. Increases in maximum penalties should match the CPI inflation rate over the previous fiscal year.
The current maximum fine for a Repeat and Willful violation is $70,000, and other violations like Serious, Other Than Serious, and Posting Requirements are $7,000 per violation.
The Federal Office of Management and Budget may issue clarification on this in January 2016. OSHA also has a July 1, 2016 deadline to publish its penalty adjustments.
On September 15, a federal judge sided with the United States Occupational Safety and Health Administration (OSHA) to uphold fines against producers of the film “Midnight Rider” after 27-year-old camera assistant Sarah Jones was killed by a freight train that came through during filming in Wayne County, Georgia. Several others sustained injuries from the incident. According to authorities, the producers did not have permission to operate on the railway.
The crew was preparing to film a dream sequence in which the actor playing rock singer Gregg Allman, on whose life the film was based, would lie on a bed over railway tracks. The crew was told that the two trains which had passed earlier were the last and no further trains were scheduled. When another train did come by, workers rushed to get their gear and themselves out of harm’s way, but could not remove the bed. Jones was struck by both the train and flying metal debris from the bed upon collision.
“Bad management decisions have real and lasting consequences, and when those decisions involve safety, the consequences can be tragic,” said Kurt Petermeyer, OSHA’s regional administrator for the Southeast. “The death of Sarah Jones is particularly disheartening because it was entirely preventable.” OSHA cited Film Allman LLC for one willful and one serious safety violation which resulted in fines of $74,900. Due to the willful exposure of known safety hazards to workers, Randall Miller, the film’s director and producer, pleaded guilty to involuntary manslaughter and criminal trespass, resulting in a two-year prison sentence and a $20,000 fine.
Jones’ death sparked an outcry last year for stricter guidelines for safety on film sets, as hundreds of members of Hollywood’s film crew community came together to hold a candlelight vigil in her remembrance.
“While yesterday’s decision cannot correct or reverse the terrible events of February 2014,” said Petermeyer,” we hope that it will serve as a reminder to the film industry that safety has an important, necessary role on every set and in every workplace.”
It is a common misconception that dangerous stunts are the only hazardous elements in the film industry. The fact is, however, much of film production involves, high-decibel audio, lighting and electrical work, evening work, and the use of heavy equipment such as booms and cranes. The important thing to remember is that no work industry is without its safety hazards.
The strong cultural presence, acceptance and legality of alcohol make it easy to forget what an impact it can have on health. In 2014, according to the World Health Organization, there were over 300,000 alcohol-related deaths in the United States alone, and over 3 million worldwide.
In 2013, over 10,000 people were killed in traffic collisions where alcohol was involved, accounting for 31 percent of all vehicle fatalities. To understand how profoundly drinking alcohol can affect the safety of a workplace, it’s important to learn how it affects the body. When we drink, alcohol’s active ingredient, ethanol, is absorbed into the blood stream and begins to interrupt chemical processes in the brain that ordinarily allow it to function normally. Contrary to popular belief, alcohol doesn’t actually kill brain cells but rather damages nerve cell endings, which bring messages to the cells, leading to a change in overall brain function.
Typical symptoms of alcohol consumption often include slurred speech, clumsiness, and slowed reflexes, all highly dangerous conditions, especially in situations where hazardous work is concerned. Brain function is only a small area affected by alcohol – it can damage the heart, liver, and pancreas as well, and has been linked to several forms of cancer.
The consumption of alcohol can bring extreme hazards to every workplace environment; however, the associated risks are heightened where hazardous machine operation or vehicle use are required.
Additionally, workers who drink heavily are more likely to work at reduced capacity and call in sick, leading to losses in productivity. Workplace effects are noticeable even when alcohol is consumed by a worker the night before a given work day.
How long can alcohol remain in our system? It can vary, depending on multiple factors: body weight and body fat affect the rate of alcohol absorption. Alcohol can be detected through urine testing and, considering the amount of alcohol ingested, can still be evident up to four days after consumption.
In order to protect workers from the harmful effects of alcohol-related incidents in the workplace, a Drug Free Workplace Program (DFWP) with associated training is necessary.
To find out more about how Safety Services Company can help develop a DFWP unique to your business, visit safetyservicescompany.com.
Planning for an OSHA inspection with the proper safety meeting topics is good business. Take these 5 steps to prepare for a surprise worksite inspection and you’ll also have a solid foundation of safe work practices.
When you apply to have OSHA’s safety and health professionals evaluate the worksite, anything they find that needs to be fixed won’t result in a compliance citation as long as it is put right.
2. Make sure you and every other employer understands their responsibilities when it comes to the hazards at each worksite.
Known as the “three Cs”, OSHA can cite employers if they: create the hazard, have control of the worksite, or are responsible to correct the hazard. This means different employers can be cited for the same hazard based on their responsibility for it.
3. Establish your rights.
Ask why the OSHA inspector is at your worksite because they need a legitimate reason. This probable cause can be: reported cases, complaints, targeted inspections or expressed points of emphasis, planned inspections, and even a compliance officer seeing a violation from the street.
Ask for a copy of the complaint/reason before they begin the inspection.
You have the right to restrict an inspection to the scope of the reason they are there. This could be a fatality, reported incident, or complaint. But be aware that anything the inspector sees during that inspection is fair game.
4. Know that OSHA can ask any employees questions in a private interview.
So the employer should make sure every employee can explain they know how to be safe at the worksite.
This also means they don’t have to answer any questions. If it’s the end of a long work day, and they have arranged a carpool, or if they are just shy they don’t have to answer any questions. Just don’t tell the workers you don’t want them to answer any questions, it’s their right to decide if they want to or not.
5. Managers will receive extra scrutiny, so train them up.
Whoever is responsible for the safety of others must know how to ensure it, including being aware of the hazards and the safe ways to mitigate them. The threshold for what OSHA considers a manager is low and includes: working lead, acting foreman, and competent person.
Other Safety School articles that examine the more academic concepts of occupational safety:
I currently have an indoor safety shower, and want an outdoor safety shower just outside the building, does the supply need to be sized in case both showers are used at once?
OSHA’s applicable regulation is 1910.151(c): “Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.”
This is a performance based regulation because it states what the safety shower must accomplish to meet the regulation. This is different from a prescription based regulation that defines an action or a limit, like the occupational noise exposure limit of an 85 decibel limit over eight hours. A prescriptive regulation is the result of a threshold being tested enough times to ensure safety within the stated limit.
The key word to the regulations is “suitable”, meaning the emergency shower has to work good enough considering the hazards at that particular worksite. OSHA explains its stance in an interpretation of the regulation:
“29 CFR 1910.151(c) does not provide specific instruction regarding the installation and operation of emergency eyewash and shower equipment. Therefore, it is the employer’s responsibility to assess the particular conditions related to the eyewash/shower unit…to ensure that the eyewash/shower unit provides suitable protection against caustic chemicals/materials to which employees may be exposed.”
Over the years OSHA has published several interpretations on this regulation, answering questions submitted to them.
In them OSHA refers employers to ANSI Z358.1. The American National Standards Institute (ANSI) is a private organization that develops voluntary standards. Unlike others, OSHA did not adopt this standard, but refers employers to it as a guide with detailed information for installing and operating emergency eyewash and shower equipment. But that means any citation will be the result of not having a suitable emergency shower for the workplace condition.
Most successful businesses understand the consequences of inadequate safety, and it’s reinforced by the data that shows proper safety training and practices reduce insurance, lost time, and turnover costs. The key question that remains however is; How safe is your business?
Business owners are constantly striving to be successful. Increasing profit margins is clearly a fundamental piece of this puzzle, and one way to help the bottom line is to cut costs. Creating new processes that are more efficient, and reducing material costs and overhead are critical parts of the profit equation, but cutting corners and skimping on safety are not.
A frequently overlooked resource for improving your workplace safety is to take advantage of the OSHA consultation program. This free program offers an on-site consultation and analysis of your safety programs and practices. In 2013, OSHA consulted with over 30,000 small businesses to assess their safety policies and offer recommendations on ways to improve them.
Some companies may be hesitant to call OSHA and request a consultation for fear of citations and fines if OSHA finds problems at the work site. The truth is that this safety and health consultation program is completely separate from the OSHA inspection effort, and there are no citations issued or penalties proposed.
Any information collected during the consultation is confidential, and not reported to the OSHA inspection staff. In addition, depending on the outcome of the consultation, you may even qualify for a one-year exemption from routine inspections.
When you contact your states consultation office, they will schedule a visit to tour your workplace. Following a short meeting to discuss the consultants’ role and set expectations, they will do a walk through of your workplace. A closing meeting, where the consultant will review their findings with you and propose actions you can take to improve safety and possibly avoid problems during an inspection, will follow this.
Shortly after the consultation, you will receive a written report explaining the consultants’ findings and identifying any required or recommended actions you need to take. The consultation program even has a Safety and Health Achievement Recognition Program (SHARP) that recognizes small businesses who operate exemplary injury and illness prevention programs.
Companies’ achieving the SHARP status benefit by being granted an exemption from OSHA programmed inspections for up to two years, and may be eligible for reduced workers’ compensation insurance premiums.
The upside of requesting an OSHA consultation is; not only do you receive an independent assessment of your safety policies, you will know how to improve them, and you will have the answer to the question; How safe is your business?
“I have some questions concerning lockout tag out and shift change with group lockout…We use what is called a “cross-turn tag” at shift change, ONLY when there is no employee to take over as a primary lockout person. These tags have numbers and those numbers are documented on the lockout paper that also shows what equipment is locked, how many locks are currently being used and what kind of energy source is being isolated. The main concern we are having is, when a new employee comes to lockout the box (group lock out), that employee HAS to cut the cross-turn tag prior to placing the his/her lock and they assume responsibility of becoming the new “master”. Some of the employees believe that having to cut this tag should not be required and it should be used as a “anti-tamper” device so they know that the box and it’s content has not been compromised.”
“I do see a problem with the process that you’ve described, and it’s not in the changeover process when a new employee comes onto the job that you described, but it’s in setting up a group lockout procedure where there is no initial primary lockout person.
While a group lockout is a way to decrease the amount of locks (one for each individual on the job) on each hasp on the equipment, it is not a way to relinquish the responsibility to have one person responsible for the integrity of the lockout/tagout process. That’s spelled out in the OSHA regulations on group lockout, 1910.147(f)(3).
“Primary responsibility is vested in an authorized employee for a set number of employees working under the protection of a group lockout or tagout device (such as an operations lock).” – 1910.147(f)(3)(ii)(A)
The OSHA regulation requires specific procedures to be developed to ensure continuous protection between off-going and oncoming employees – 1910.147(f)(4) – , but does not spell out what they need to be. So a properly developed and executed “cross-turn tag” may be effectively used to indicate the change from one primary lockout person to another. Still OSHA shows a preference toward using a lockout device first and tagout only when a lock is infeasible.
Instead of creating a procedure that starts with nobody in charge of the group lockout, I would create a permit system where there is always a primary person responsible for everyone’s safety in charge of the lockbox that has the key to the lockout devices and the hasp to the lockbox has a lock for every individual employee on the project. The permit will name the primary person and each employee on the project. Then when a new employee comes onto the project, they can check with the primary person who can take note of the new employee on the permit and the new person can add their lock to the hasp on the lockbox.”