The Workplace Safety Rules Changed and Most Companies Don’t Even Know It.

OSHA ReflectionIn late March, a Houston company selling Christmas trees was hit with fines of $117,000 for OSHA violations.  The case stemmed from a worker injury in December, triggering an inspection that found more than a dozen serious violations.  The most significant thing about the case is that, prior to last year, OSHA would probably never have even inspected the location.  

 

At the beginning of 2015, the Occupational Safety and Health Administration (OSHA) launched one of the biggest changes in American safety in years and most companies don’t even know about it.  The change came in the form of a new definition for “severe injuries” under OSHA’s regulations and new reporting requirements.  Before, companies were required to report any time a worker was killed or at least three workers were hospitalized within eight hours of the accident.  However, as of January 1, 2015, employers are now required to report fatalities and any injury resulting in a hospitalization, amputation or loss of an eye.

One of the first businesses in the country to learn what a change that meant was a Houston-area construction company.  Less than one month after the change was instituted, a worker fell through a hole in the roof and was seriously injured on one of the company’s projects.  The details of the case caused OSHA to hit the company with a massive fine of $362,500, including $70,000 because it waited three days to report the accident.

Since then, more than 600 other companies have been fined for failing to properly report incidents, according to Bloomberg BNA.  But it is not the fines for failing to report that have made the biggest impact; it is the way the reports give OSHA an up-close, real-time view of how people get hurt on the job in America.

Now a year later, OSHA has released a report that shows just how much they have learned about on-the-job injuries.  For starters, the agency received more than 10,000 reports last year, about 30 a day.  Making matters worse, OSHA estimates that industry is under-reporting by 50 percent.

The reports that are made give OSHA two things: a big-data window into the relative safety of different industries, and a brand-new approach to inspecting and investigating individual businesses.

Big Data

The injuries included 7,636 hospitalizations and 2,644 amputations.  As one OSHA publication puts it, “statistics are people with the tears washed off.”  It is the amputation statistics that jumped out.  OSHA has been preaching to the manufacturing sector about amputation hazards for a long time.  However, amputations in grocery stores and other companies that use food slicers appear to have been an eye-opener for agency officials and they have singled that sector out with a program to raise awareness and also for stepped-up enforcement.

Grocers are one example of the way the new rule has allowed OSHA to target its limited resources.  Before, a store had relatively little chance of ever getting a visit from an OSHA inspector.   Now they are getting attention from regulators.   In March, a national grocery store chain was fined $45,500 after a worker sliced off a fingertip.   And that may be the least of that company’s worries.  As attorney Howard Mavity of Fisher & Phillips has pointed out, a second violation at any of a company’s stores in the next five years could potentially make it a repeat offender under the regulations and open the door to a $70,000 fine for each offense.

What happens when the data identifies a high number of injuries within a certain industry or area?  On March 16, after reviewing reports that indicated that meat processors in Nebraska had an injury rate well above the national average, OSHA launched a local emphasis program. The very next day, OSHA added a regional emphasis program for Kansas, Nebraska, Missouri poultry processors.  OSHA emphasis programs are part carrot, part stick approach – The carrot is a communications outreach to companies and workers. The stick is dramatically increased, targeting inspections.  In the words of the order, “Meat processing facilities will be evaluated to determine whether the employers are in compliance with all relevant OSHA requirements, to help employers come into compliance, and to ensure that employees are protected from the hazards related to animal slaughtering and processing. “

Once an industry is on the list, companies in that industry will see increased inspections, which bring the potential for new violations, the threat of becoming a repeat offender and, over time, more pressure on the agency itself to take any measures within its power to improve safety in that industry.  Suddenly companies that have flown under OSHA’s radar will get to know their regulators very well.

Company Inspections

The rules also triggered a complete change in the way OSHA handles investigations of incidents.   Most companies are still not prepared for this.  To understand the change, you must first understand that OSHA already does a lot with a very limited budget.   Once accident reports started flooding in, local offices did not have the resources to visit every accident site.

So they started a triage system.   About a third of the time, investigators went to the accident scene and performed an inspection.  About five percent of the time, they decided no investigation was required.  What about the remaining 62 percent?  For those cases, OSHA invented a new type of investigation, the Rapid Response Investigation (RRI).  Employers are asked to perform their own investigation, including a root cause analysis.  The company is told to:

  1. Analyze the incident;
  2. Identify the causes;
  3. Present its finding to OSHA, potentially including pictures and blueprints; and
  4. Propose steps it will take to keep the accident from happening again, such as training or changes to procedures.

For companies with staff who understand incident analysis and safety programs, this has not been much of a problem.   Anecdotally, company safety professionals have said OSHA was easy to work with and focused on prevention more than punishment, which should be everyone’s goal.

But smaller companies may lack that expertise and this process can be difficult and potentially expensive.  A lot of companies, especially those in low-risk industries, may go years without an incident, even though they don’t have formal programs or training in recognizing hazards.  However, if someone is hurt, they may find themselves in a kind of double jeopardy.  First they had the accident, and then they run the risk of bringing additional scrutiny by performing a haphazard investigation.  Sure enough, OSHA investigators say privately that they spend a lot of time explaining to small companies what they need to do to perform the investigation.

Finally, there is always the temptation to cheat.  As OSHA says, if there were 10,000 reports last year, there may have been 10,000 more injuries that went unreported.  Of course, lying to OSHA has always been a reckless approach that can result in criminal penalties.

Overall, OSHA is one year into an ambitious program that could dramatically improve workplace safety in America, but there are still some bumps along the way.  Companies need to understand the new paradigm, step up their safety programs and recognize that the way they investigate an accident and the steps they put in place to prevent it in the future are critical in determining how OSHA treats them in the future.

Ken Wells is the founder and president of Lifeline Strategies, consulting firm located in Houston.  Lifeline Strategies’ units work with companies to manage their safety and regulatory programs, maintain healthy workplace through occupational medicine management and establish integrated brands for their customers and the public.

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