Apr 1, 2011
2010 was one of the most active periods in the Occupational Safety and Health Administration’s (OSHA) history, and we are likely to see this effort continue through 2011 and beyond. The Agency is using every tool at its disposal to ensure that employers are in compliance with the applicable standards and rules, and pushing forward with new rules, enforcement initiatives, interpretive letters, and media initiatives at an unprecedented pace. Employers must match this activity level and be especially vigilant to ensure that they understand the Agency’s latest positions on safety and health issues relevant to their worksites. This Top Ten summarizes significant recent OSHA initiatives affecting employers.
1. OSHA’s Top Ten Most Frequently Cited Standards
It is fitting to start this Top Ten with OSHA’s announcement of its Top 10 Frequently Cited Standards for fiscal year 2010. According to the Agency, "OSHA publishes this list to alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up." The Top Ten are:
- 1926.451 - Scaffolds
- 1926.501 - Fall Protection
- 1910.1200 - Hazard Communication
- 1910.134 - Respiratory Protection
- 1926.1053 - Ladders
- 1910.147 - Lockout/Tagout
- 1910.305 - Electrical, Wiring Methods
- 1910.178 - Powered Industrial Trucks
- 1910.303 - Electrical, General Requirements
- 1910.212 - Machine Guarding
Employers are encouraged to take note of this list. These standards relate to commonly found hazards and also point to those hazards that compliance officers focus on in the course of regular inspections.
2. Severe Violator Enforcement Program
OSHA’s Severe Violator Enforcement Program (SVEP), which took effect on June 18, 2010, “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer’s related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements. In addition, OSHA intends to prominently publicize—in press releases and on its website—those employers that are part of the program.
The following types of cases are considered SVEP cases under the program:
- A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
- An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
- An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
- All egregious enforcement actions.
3. Administrative Enhancements to OSHA’s Penalty Policies
In a memorandum to Regional Administrators, which took effect on October 1, 2010, OSHA significantly revised its penalty structure, increasing penalties on employers by, among other things:
- Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
- Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years.
- Increasing the minimum proposed penalty for a serious violation to $500.
- Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty.
4. Recordkeeping National Emphasis Program
OSHA has retooled its Recordkeeping National Emphasis Program (NEP), which was initiated originally in September 2009 and is designed to investigate whether, and to what extent, injuries and illnesses are being underreported by employers. OSHA hopes that the updated NEP will better target employers who, in the Agency’s view, may be underreporting workplace injuries and illnesses. Recordkeeping NEP inspections involve a detailed review of employers’ recordkeeping logs, workers compensation data, other injury and illness information, and in- depth interviews with employees, supervisors, and medical personnel.
5. Letters of Interpretation
OSHA issued 39 letters of interpretation in 2010, covering issues such as scaffolding and English language proficiency at construction sites. Often these letters of interpretation fly “under the radar” for employers. The letters, however, drive much of OSHA’s enforcement in the areas addressed and are often utilized by compliance officers in the course of inspections to show that employers should have had “notice” of their obligations under the standard. OSHA is particularly active in utilizing letters of interpretation in its enforcement activity – as compared to previous years – and employers must take note of this.
6. Proposed Interpretation of Feasible Engineering and Administrative Controls for Noise Exposures
OSHA issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in the Agency's general industry and construction occupational noise standards. The proposed interpretation would have altered existing Agency enforcement policy for determining when an employer may utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls. Not too long after issuing the proposed interpretation, however, OSHA pulled it back, citing the need to gather more information on the impact of the proposed interpretation on employers. While this was welcomed by industry stakeholders, employers should continue to focus on their efforts to reduce noise exposure to employees through engineering and other controls.
7. Cranes and Derricks in Construction Final Rule
By many measures the most significant safety standard issued by OSHA in the last two decades, OSHA’s new rule regarding Cranes and Derricks in Construction contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification. Virtually all provisions in the final rule became effective on November 8, 2010, and OSHA will soon start enforcing the rule vigorously. Employers should look for a compliance directive on the cranes and derricks in construction rule sometime in the Fall of 2011.
8. Proposed Changes to On-Site Consultation Program
OSHA proposed to make significant changes to its On-site Consultation program. This popular program, in OSHA's own words, "provides well-trained professional safety and health personnel, at no cost and upon request of an employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards." One of the benefits of the On-site Consultation program is that employers who willingly participate in the program may be eligible for deferrals from OSHA programmed inspections, such as those conducted per OSHA's Site Specific Targeting Program.
In this proposed rule, OSHA is proposing to limit the period of time that employers may benefit from the programmed inspection deferral to only one year. The proposal also provides for a further exception from the programmed inspection exemption for "other critical inspections" the Assistant Secretary of OSHA determines are necessary.
9. Proposal to Restore MSD Column on "300 Log"
OSHA proposed in 2010 adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). Under the proposed rule, employers would have been required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition of MSD. OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” At one time, it was thought that this proposed rule would be finalized in 2010 and become effective in 2011. However, the final rule was temporarily withdrawn from Executive Branch clearance by OSHA and it is unclear when – or even if – it will ever be finalized.
10. Injury and Illness Prevention Program Rule
And last, but certainly not least, OSHA intends to make significant progress on its Injury and Illness Prevention Program (IIPP) proposed rule in the coming months. This proposal – one of the signature initiatives of the Department of Labor – would require employers to establish a safety and health program at their worksites. While the precise scope of the rule is not yet set, employers should expect to see the following program requirements: management leadership; employee participation; hazard identification and control; program evaluation; and education and training. Because this rule could potentially apply to all employers covered by OSHA, employers are encouraged to follow the rulemaking process closely and start examining their own internal safety and health management systems.
ADDITIONAL RESOURCES
Government Forms and Information
Occupational Safety & Health Administration (OSHA)
Severe Violators Enforcement Program
Administrative Penalty Bulletin
Proposed Changes to On-site Consultation Program
National Emphasis Program
Cranes and Derricks in Construction Rule
OSHA Proposal on Musculoskeletal Disorders (MSDs)
OSHA Training Standards Policy
OSHA Letters of Interpretation
Sponsor Resources
OSHA's Severe Violator Enforcement Program Effective June 18
OSHA Unveils Severe Violator Enforcement Program and Increase in Penalties
OSHA Looking to Change Popular On-Site Consultation Program
Special Report: National Emphasis Program
Special Report on OSHA's Cranes and Derricks in Construction Final Rule
OSHA Proposes to Restore MSD Column on "300 Log"
