The Occupational Safety and Health Administration is ramping up enforcement efforts against companies that fail to provide safe workplaces to combat an increase in job-related injuries and deaths across many sectors. It also plans to spend more to encourage workers to report safety problems at their employers.
According to OSHA's 2014 proposed budget report, the agency said it plans to devote less resources and attention to educational outreach efforts and instead redirect those efforts toward “strengthening and reinvigorating the agency's enforcement presence and bolstering the ability to address claims of retaliation.” To assist in these efforts, OSHA is requesting a budget of $570.5 million—an increase of $5.7 million from fiscal year 2012—for fiscal year 2014.
“Since the Obama Administration, OSHA enforcement has been, and continues to be, much more aggressive than prior administrations,” says Michael Taylor, a partner in the workplace safety and health practice of law firm Jackson Lewis. He says he expects enforcement efforts to intensify even more over the next few years.
OSHA has indicated as much, stating that it will focus on boosting its whistleblower program and significantly ramping up its enforcement staff. The agency's budget includes an additional $5.9 million to invest in 20 whistleblower protection programs administered by OSHA.
The agency also plans to hire 47 more enforcement officers to assist in this effort. The increase in resources is to reduce the backlog of whistleblower claims, expedite the handling of current complaints, and “prepare for a high volume of complex cases as a result of recently passed laws involving healthcare reform, food and safety, motor vehicle manufacturing, and finance reform,” OSHA stated.
OSHA's intensified focus on whistleblower protections means that companies across all industries should ensure they have adequate procedures in place to encourage employees to report all safety concerns and to protect them when they do.
“Often it's the employees who know first if there is a safety concern,” says Jeffrey Tanenbaum, a partner in the law firm Nixon Peabody and chair of the firm's labor and employment practice group and national OSHA team. If employees are bringing their concerns to the employer first, and those concerns are properly addressed, employees are less likely to make a report to OSHA, Tanenbaum adds.
Targeted Industries
OSHA's plans to bulk up enforcement comes at a time when job-related deaths in the mining, construction, and oil and gas industries are on the rise, making these sectors particularly vulnerable to OSHA enforcement actions.
According to the 2012 Census of Fatal Occupational Injuries—the latest data gathered by the Bureau of Labor Statistics—fatal work injuries in the oil and gas industries increased 23 percent from 112 fatalities in 2011 to a record high of 138 deaths in 2012. Fatal work injuries in the mining sector increased 14 percent from 155 deaths in 2011 to 177 in 2012—the highest level since 2007.
“It's prudent for companies across all sectors to be proactive with their safety program and make sure they understand their compliance obligations.”
—Jonathan Snare,
Partner,
Morgan Lewis
The construction industry accounted for the highest number of fatalities, which increased 5 percent from 738 in 2011 to 775 in 2012. “Job gains in oil and gas and construction have come with more fatalities, and that is unacceptable,” Labor Secretary Thomas Perez said in a statement. “The Labor Department is committed to preventing these needless deaths, and we will continue to engage with employers to make sure that these fatality numbers go down further.”
Other employers that are prone to an OSHA inspection and more rigorous enforcement are those that appear on OSHA's Severe Violator Enforcement Program (SVEP) list, developed by OSHA to focus greater attention on employers that have engaged in willful or repeat violations. Under the OSH Act, if an employer's willful violation of any OSHA standard causes the death of an employee, the employer could face fines up to $500,000, whereas individuals could face fines up to $250,000 and up to six months in prison.
Companies that land on the SVEP list face stiffer penalties when additional violations are discovered, says Tanenbaum. And executives face personal liability. “Criminal penalties can be assessed against executives and managers as individuals, in addition to the employer itself,” he says.
OSHA SAFETY & HEALTH PROGRAM GUIDELINES
The following is an excerpt from the Occupational Safety and Health Administration's safety and health program management guidelines for use by employers to prevent occupational injuries and illnesses.
General: Employers are advised and encouraged to institute and maintain in their establishments a program which provides systematic policies, procedures, and practices that are adequate to recognize and protect their employees from occupational safety and health hazards.
An effective program includes provisions for the systematic identification, evaluation, and prevention or control of general workplace hazards, specific job hazards, and potential hazards which may arise from foreseeable conditions.
Although compliance with the law, including specific OSHA standards, is an important objective, and effective program looks beyond specific requirements of law to address all hazards. It will seek to prevent injuries and illnesses, whether or not compliance is at issue.
The extent to which the program is described in writing is less important than how effective it is in practice. As the size of a worksite or the complexity of a hazardous operation increases, however, the need for written guidance increases to ensure clear communications of policies and priorities and consistent and fair application of rules.
Major Elements: An effective occupational safety and health program will include the following four elements:
Management commitment and employee involvement are complementary. Management commitment provides the motivating force and the resources for organizing and controlling activities within an organization. In an effective program, management regards workers safety and health as a fundamental value of the organization and applies its commitment to safety and health protection with as much vigor as to other organizational purposes. Employee involvement provides the means through which workers develop and/or express their own commitment to safety and health protection, for themselves and for their fellow workers.
Worksite analysis involves a variety of worksite examinations, to identify not only existing hazards but also conditions and operations in which changes might occur to create hazards. Unawareness of a hazard which stems from failure to examine the worksite is a sure sign that safety and health policies and/or practices are ineffective. Effective management actively analyzes the work and worksite, to anticipate and prevent harmful occurrences.
Hazard prevention and controls are triggered by a determination that a hazard or potential hazard exists. Where feasible, hazards are prevented by effective design of the jobsite or job. Where it is not feasible to eliminate them, they are controlled to prevent unsafe and unhealthful exposure. Elimination or controls is accomplished in a timely manner, once a hazard or potential hazard is recognized.
Safety and health training addresses the safety and health responsibilities of all personnel concerned with the site, whether salaried or hourly. If is often most effective when incorporated into other training about performance requirements and job practices. Its complexity depends on the size and complexity of the worksite, and the nature of the hazards and potential hazards at the site.
Source: OSHA.
Companies that are on SVEP are more likely to undergo mandatory follow-up inspections not only at the facility where OSHA issued the citation, but other facilities or worksites as well. “Once you're in SVEP, you're subject to continuous inspections,” says Jonathan Snare, former deputy solicitor of labor at the Department of Labor and now a partner in the law firm of Morgan Lewis.
Once in SVEP, it's very difficult for employers to get out of the program, which has a component that increases reputational risk: OSHA lists all SVEP employers publicly, making it difficult in some cases for employers to get federal contracts, says Taylor.
According to OSHA, employers may be removed from the program after a period of three years, and only after they have “abated all SVEP-related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.”
Additional Enforcement
Snare explains that “OSHA does not have authority to prosecute.” Cases have to be referred to the Department of Justice, which ultimately makes that decision, he says.
Over the past five years, however, OSHA has significantly increased the frequency of referrals to the Justice Department for investigation, increasing the likelihood of criminal sanctions, according to labor and employment law experts. “All of these cases where there is a referral are cases where there is a fatality,” says Snare. Whether U.S. lawyers are taking these cases up more actively, however, is difficult to say.
Aside from federal OSHA, employers must pay attention to state OSHA enforcement initiatives, “some of which have more aggressive and detailed procedures for criminal investigations and criminal enforcement,” says Tanenbaum.
California, for example, has a separate group within the Division of Occupational Safety and Health—the administrative agency that enforces California's OSHA—known as the Bureau of Investigations, whose sole purpose is to investigate cases to determine whether criminal prosecution is warranted. California has “definitely been pretty aggressive in prosecuting workplace safety cases that result in fatalities,” says Snare.
In addition to enforcement, OSHA said it will “continue to develop and revise regulations and standards under the agency's regulatory agenda.” To aid in these efforts, OSHA has requested an additional $2.1 million for the development of safety and health standards.
OSHA is also requesting a budget increase of $1.37 million to “enhance the training of compliance safety and health officers, whistleblower investigators, and supervisors at its OSHA Training Institute.” OSHA will also hire five new staff members to aid this effort.
As OSHA continues to ramp up its efforts from an enforcement and regulatory standpoint, it's prudent for companies across all sectors “to be proactive with their safety program and make sure they understand their compliance obligations,” says Snare. They should also perform regular audits, he says, to ensure they have a handle on safety issues.
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