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OSHA flexes its regulatory muscle

OSHA flexes its regulatory muscle

Aggressive is the adjective most often used to describe the U.S. Occupational Safety and Health Administration these days, partly due to perceived efforts to blame employers for workplace safety accidents, but the agency gets praise for providing tools and resources to help employers stay on the right side of the law.

Safety and health experts have noticed an evolution in the agency's regulatory and enforcement policies and practices in recent years, coinciding with the elevation of David Michaels to assistant secretary of labor for occupational safety and health in December 2009.

“Secretary Michaels is passionate about employee health and safety and has been both very progressive and aggressive,” Valerie Butera, a Washington-based member of the labor and employment practice of Epstein Becker & Green P.C., said of the longest-serving assistant secretary in OSHA's history. “OSHA has authority over almost every employer in the country, and they're using it now.”

For example, the agency is more actively relying on the Occupational Safety and Health Act's general duty clause to cite industries for violations where there is no specific standard, such as ergonomics, workplace violence and heat stress/illness hazards.

The clause requires employers to furnish employees with a place of employment free of recognized hazards likely to or causing serious physical injury or death. The clause has been the fourth-most cited standard for severe injury reports triggered by new reporting requirements effective Jan. 1, 2015, with 175 violations issued in the first nine months of 2015, according to OSHA.

“I would characterize the agency's enforcement effort as becoming increasingly aggressive,” said Meagan Noel Newman, a Chicago-based partner and co-chair of the environmental, safety and toxic torts practice group at Seyfarth Shaw L.L.P.

A widely reported recent use of the general duty clause was OSHA's citation of Orlando, Florida-based SeaWorld Parks & Entertainment Inc. following the 2010 death of trainer Dawn Brancheau, who was pulled into a pool by a killer whale — citations the U.S. Circuit Court of Appeals for the District of Columbia upheld in 2014.

“We use that clause when there is no standard that's directly applicable, but there's a clear hazard,” Mr. Michaels said.

The agency is trying to dispel the notion that worker carelessness drives workplace injuries, Mr. Michaels said at a recent meeting of the National Advisory Committee on Occupational Safety and Health. Some employers fail to recognize that the lack of machine guarding may have caused an injury, he said.

“There is an instinctive blame-the-worker mentality that we must combat,” he said. “If you spend a lot of time telling employees, 'Don't make a mistake,' you won't have a good safety program.”

But Ms. Newman said OSHA's rhetoric and enforcement policies signal the agency's stance that any injury is the result of a safety and health violation without recognizing that some workplace accidents are just that: accidents.

“Not only is that legally false, it's just logically false,” she said.

While companies traditionally view OSHA as a hindrance, OSHA does not inspect employers that are doing what they should from a workplace safety perspective, said Robert Cartwright Jr., Exton, Pennsylvania-based safety and health manager for Bridgestone Retail Operations L.L.C. and treasurer of the Risk & Insurance Management Society Inc.

OSHA can be very helpful to employers that want good, cost-effective safety programs built with the cooperation of all employees, from management to field operations, he said.

“OSHA is not always the bad guy,” Mr. Cartwright said.

The agency has a free, on-site program for small to medium-size employers in which consultants help them identify workplace hazards and offer compliance guidance without fear that the process will result in citations or penalties.

“I do think OSHA's made a lot of progress over the years, particularly on the education component,” said Patrick McCarthy, a partner at Day Pitney L.L.P. in Parsippany, New Jersey.

When enforcement is needed, OSHA will use penalties set to significantly increase next year to discourage employers from seeing workplace accidents as a cost of doing business.

“For those employers who refuse to abate their hazards and put their workers in danger, we have stronger tools to encourage them to abate hazards,” Mr. Michaels said.

In addition, OSHA revamped its enforcement weighting system in October to shift the focus away from the overall number of inspections to more complex sites, such as oil refineries, where the inspections could take months, Mr. Michaels said.

“In the past, we expected area offices to do a certain number of inspections,” he said. “That system discouraged taking on those complex inspections. This will allow our area offices to better use their resources and focus them on those establishments that require the long, sort of intensive, inspections.”

A key risk management action is to document all workplace safety training, as well as any discipline or corrective actions for employees who violate safety and health policies and procedures.

“If it's not documented, (OSHA is) probably going to assume that the training didn't take place,” said Chris Retter, vice president and risk control manager for IMA of Kansas Inc., a unit of IMA Inc. in Wichita, Kansas.

Employers should identify and immediately correct easy hazards such as lack of machine guarding or blocked exits — a typical plain-sight violation that allows an inspector to expand the inquiry, Epstein Becker's Ms. Butera said.

“Don't just sit by idly and wait for OSHA to come,” she said.