The Obligations of Providing a Safe Workplace

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

June 1, 2010

Providing a safe workplace is everyone’s concern, whether you are a contractor, a manufacturer, or the owner and operator of a power plant, chemical plant, or hospital. Failure to provide a safe workplace for your employees can result in serious injuries and even death. You have the responsibility to ensure that your employees have a safe place to work every day. What do you do to ensure this?

The methods by which you fulfill your responsibilities may not be the same as those of your industry peers. How effective you are in meeting these responsibilities has a direct impact on your ability to keep employees at work, your insurance premiums for workers’ compensation costs, the quality of the work you are able to produce, the cost of producing that end product, and how you are affected by regulatory enforcement (Occupational Safety and Health Administration [OSHA] inspections). Secondary impacts include how you are viewed by your peers in industry and, if you are a contractor, your ability to get work and bid jobs (two things increasingly affected by safety records).

In providing a safe workplace for your employees, you face several different obligations. You are expected to comply with either state or federal laws concerning safety, training, recordkeeping, and hazard evaluation. You are also expected to go beyond the “black letter law” and implement techniques and approaches necessary to ensure that your employees do not get injured. These procedures may well go beyond what any particular safety rule or standard requires. Finally, you must address the problem that confronts everyone: employee apathy. You need to address this particular problem by effectively training your employees, providing incentives for their safety compliance, and, finally, enforcing the safety rules and regulations you implement to ensure employee compliance and safety.

Most importantly, you as an employer must take time and employ the necessary expertise to identify the hazards to which your employees are exposed, and then take steps to either eliminate the hazards or protect employees from them. Of almost the same level of importance is the need for you to acquaint yourself with all the state and federal standards that apply to the work you do and that dictate what state or federal OSHA and other regulatory agencies feel you need to do to provide your employees a safe place to work.

There is not enough space in one article to cover all the standards and the details involved that affect your business. This article will, however, acquaint you with two recent changes with regard to OSHA that will have a direct impact on how you approach safety and regulatory compliance.

National Emphasis Program and OSHA 300 Logs

A National Emphasis Program (NEP) started on October 1, 2009, to address recordkeeping. The program was put into effect because of concerns identified to OSHA with regard to under-reporting or misreporting of injuries and illnesses on OSHA 300 logs in the meat packing and poultry industries. Although it started with concerns there, the NEP is not limited to those industries—it affects all employers.

The importance of an NEP is not that new rules and regulations have been promulgated, but that OSHA is announcing that there are significant problems with employer compliance in areas covered by the NEP. By identifying those problems, OSHA has established probable cause to visit any employer and inspect its recordkeeping compliance. This NEP will last through September 30, 2010.

Your company may be visited by an OSHA compliance officer to conduct a compliance inspection for recordkeeping. If such a visit occurs, you want to be sure that your recordkeeping for OSHA 300 compliance is up to date. The following are a couple of suggestions to help ensure that you are in compliance with the OSHA 300 recordkeeping requirements.

  • An OSHA 300 must be maintained by any business that employs 11 or more employees in any calendar year. You are required to record all injuries and/or diseases that occur in the workplace that meet the recording criteria. While the level of detail required in the recordkeeping criteria exceeds the scope of this article, basically any injury or disease that results in lost time—even 1 day—or restricted duty of any kind must be recorded on the OSHA 300 log.
  • In addition, any injury requiring treatment beyond first aid must be recorded on the OSHA 300 log.

OSHA 300 recordkeeping requirements can be found in Title 29 of the Code of Federal Regulations § 1904. This is an easy standard to read. Many of the requirements are provided as responses to frequently asked questions by employers.

Be aware that OSHA 300 records must be kept up to date and readily available. The standard requires that you be able to produce these records to an OSHA compliance officer within 4 business hours of his or her request. It is suggested that you maintain OSHA 300 logs going back at least 5 years, if not longer.

From a company standpoint, the OSHA 300 log should be used to identify areas where additional safety measures may be needed within your business. A human resources or safety professional should regularly review the OSHA 300 log to determine trends of injuries and/or areas in your facility where injuries seem to occur most frequently. Those areas should be carefully reviewed and inspected to determine hazards that may not have been previously identified but that are causing injuries. After those hazards have been identified, steps should be taken to remove the hazards or to protect employees from them. This helps accomplish the basic tenet of safety: providing a place of employment free of any hazard likely to cause employees serious physical harm.

OSHA Repeat Citations

Another area where OSHA continues to place significant development efforts is the OSHA Field Operations Manual (FOM). The FOM is somewhat like a policy and procedures manual: It provides day-to-day guidance for OSHA compliance officers, area directors, and others in how they go about their tasks in enforcing OSHA standards, providing compliance assistance, and implementing and facilitating other OSHA programs such as the Voluntary Protection Programs. Although the FOM is not law, it has a tremendous impact on how you interface with OSHA.

On March 26, 2009, OSHA made several changes to the FOM. One recent change addresses OSHA repeat citations. OSHA can issue a repeat citation whenever they visit a company and observe a violation of a particular OSHA standard if they determine that violation is substantially similar or exactly the same as a previous citation that was affirmed or accepted by the employer and became a final order of OSHA. While the current penalty for a serious OSHA citation is from zero to $7,000, the penalty for a repeat citation is from zero to $70,000. While the $70,000 maximum penalty is seldom used, except in the most egregious circumstances, penalties for repeat citations can be significantly higher than those for a similar serious citation. For this reason, always be sure that not only do you correct any OSHA violations for which you have been found responsible, but you ensure the corrective action you have taken is maintained.

The change to the OSHA FOM was to advise the area directors and compliance officers that while repeat citations can be issued to employers who have an underlying violation in a federal OSHA state, a repeat citation cannot be based on an underlying citation issued in a state OSHA state. States are permitted to apply for permission to operate their own state OSHA programs. The only guideline for a state OSHA program is that it must be at least as strict as federal OSHA. California, for instance, has a state OSHA program that, in this writer’s opinion, is substantially stricter in all aspects than federal OSHA. Most states have programs that mirror the federal OSHA standards but do not necessarily follow federal procedures following an OSHA citation.

The new FOM policy is that citations issued against an employer in a state with an approved state OSHA program shall not be used by an OSHA compliance officer or area director in a federal OSHA jurisdiction as a basis for a repeat citation against that employer. But do not get too comfortable—the FOM does indicate that the facts of the state OSHA citation can still be used to demonstrate employer knowledge of a particular hazardous situation, which can be used to provide justification and support for a willful violation against the employer. Also, be aware that the reverse is not necessarily true; a state can use a federal OSHA citation as the basis for a repeat citation in the state.

General Duty Clause Citations

The other modification of note in the FOM concerns OSHA general duty clause citations. The OSHA general duty clause, which is Section 5(a)(1) of the Occupational Safety and Health Act of 1970, requires that every employer provide a place of employment free of recognized hazards that are causing or likely to cause death or serious physical harm. There has probably been more litigation concerning what constitutes a general duty clause violation than for any specific OSHA standard. Most of this litigation centers on the definition of a “recognized” hazard.

In a general duty clause citation, OSHA must demonstrate that the hazard observed by a compliance officer is known and/or recognized by the employer as a hazard. Such recognition can be established by demonstrating through interviews that management was aware of the hazard and recognized it as a safety hazard. A second way of demonstrating that the employer recognizes the hazard is to demonstrate that the employer’s industry recognizes the hazard. For example, if the subject is a general duty clause hazard for the power production industry, OSHA could try to demonstrate that the particular company recognized the hazardous situation or that the power production industry in general recognizes the hazardous situation.

Under the new modification to the FOM, OSHA has added a consideration for its compliance officers when evaluating employer recognition of a hazard. That new criteria is “common sense,” which is defined in Roget’s II The New Thesaurus as “the ability to make sensible decisions.” Merriam Webster’s Collegiate Dictionary, the Tenth Edition, defines common sense as “1: the unreflected opinions of ordinary people, 2: sound and prudent but often unsophisticated judgment.”

Having reviewed these definitions, it is still difficult to specify what OSHA will consider to be common sense for the purposes of determining hazard recognition. As frequently occurs, the new criteria for determining whether an employer has or has not recognized a particular hazard will most likely be the subject of much litigation until an acceptable definition for common sense is determined by either the Occupational Safety and Health Review Commission or the courts.

Coupled with the common sense recognition of a hazard, OSHA also has indicated that whether an employer has recognized a hazard may be determined by a review of electronic communications. OSHA may look at a company’s e-mails and other electronic records to see if hazards have been identified. This should put all employers on notice that they need to be more concerned about electronic communication. When a hazard is identified and communicated, corrective action must be taken immediately, even if the hazard is not the subject of a specific standard.

Safety Must Be a Priority

The preceding is an outline of just two areas in which OSHA has recently taken steps that can affect your business. Congress is considering significant legislation which, if passed in its present form, will significantly change the way we are impacted by OSHA. As of the writing of this article, all legislation is still pending in committee.

Employers are confronted with many workforce issues. They must be concerned with a cornucopia of federal laws that govern how to hire employees, how to discipline employees, how to treat employees with disabilities, etc. Perhaps the most important workforce issue is ensuring that employees are provided a place of employment that is free of hazards and that you treat safety as the number one priority of your business issues.

Other employment laws are important and can affect you because of actions you take against an employee, but most can be remedied by a change in personnel policies. Safety is an area where the failure to comply has effects far exceeding the cost of compliance, fines, or penalties. The impacts of an unsafe workplace go far beyond your costs of corrective action and/or fines and penalties because they include, in addition to the significant injuries that can occur to an employee, increases in insurance premiums, loss of efficiency, loss of quality, and loss of the ability to continue to operate your business.