CoatingsPro Magazine - January 2022
Safety Watch
Jack Fearing 2021-12-28 22:08:45
OSHA’s Recent Patterns, Priorities, and Processes
The Occupational Safety and Health Administration (OSHA) has really been under the gun, so to speak, from the previous and current administrations during the ongoing COVID-19 pandemic. Each administration has focused on different areas, but several patterns have emerged in three distinct areas. In terms of what is happening, coatings contractors need to be aware of new and enhanced regulations, aggressive enforcement, and increasing penalties.
New and Enhanced Regulations
First of all, OSHA has been using new and enhanced regulations as a result of COVID-19 to support employers’ compliance efforts. The administration has been using what’s called discretionary enforcement, and it has allowed a lot of us to operate without having perhaps 100 percent compliance with the new, interim, or revised standards that OSHA has promulgated.
In the past few years, there have been a great deal of both interim and temporary standards. Even more recently, the temporary standards have increased. For example, in the personal protective equipment (PPE) realm, there has been an emphasis on respirators in general and face masks in particular. There have also been significant changes in the OSHA recordkeeping interim standard, beginning in April of 2020, which includes, among other things, adding a COVID-19 log. That changed again in May of 2020, and then, of course, as a result of that, a lot of things have happened. All of that has required us perhaps to be a little bit more diligent in terms of paying attention to what’s coming down the pike with OSHA recordkeeping and other regulations.
You’ve also got updates on hazard communication and drug testing standards, too. And after many attempts, a heat stress standard is on the horizon for 2022. As these topics begin to emerge in terms of new, or enhanced, regulations, it’s important that you recognize your opportunity to comment on them as appropriate, so keep an eye out on progressing standards that may impact the construction industry.
More Aggressive Enforcement
In fiscal year (FY) 2020, OSHA conducted more than 6,600 inspections and issued 17,000 citations. Things haven’t come to a stop by any means just because of COVID- 19. What has happened is that OSHA’s unprogrammed inspections have pretty much dwindled down considerably, and, obviously, inspections have gone more and more to using various technology tools, such as using Zoom meetings, cell phone calls, and other means to prevent their inspectors from perhaps being exposed to COVID-19 and other potential jobsite hazards.
In 2018, OSHA began using drones in inspections, and that changes the landscape significantly. In terms of the OSHA doctrine, this can affect the use of “plain view.” If OSHA is conducting an inspection and they’re going to a targeted area but they see other potential violations, they can redirect at any time. Certainly, using a drone over a construction site would open that up quite a bit.
Also, the enforcement area has expanded. The OSHA budget for 2021 and beyond has been increased by more than $64 million, and that’s to include an additional 350 new OSHA compliance inspectors. So we can expect to see more inspectors in the field, particularly as COVID-19 begins to become a little bit more manageable in terms of what everybody’s doing both as the inspectors and, of course, as the employers.
Then, of course, there’s new leadership. The leadership of the Secretary of Labor is a former mayor of Boston and a former trade association president. The new OSHA administrator is a former Cal/ OSHA administrator. As a result of that, we can expect that they will be looking at things perhaps a little bit differently than previous leadership as we go along.
Increasing Penalties
Every year since 2016, OSHA penalties automatically increased 2 percent. In 2020, there was more than $60 million in penalties just in the construction industry. The top five violations alone in the construction industry resulted in almost $5 million in penalties (the highest single penalty in FY2020 was $1.9 million). So, again, you can expect to see more and more of that type of increase in the future.
The OSHA Inspection Process
So how should you be proactive before and during an OSHA visit?
OSHA inspections are unannounced. Even though advance notice is typically never done unless there is an unusual circumstance, you are required to allow them to enter without delay; however, you can push back in terms of requesting a warrant or some other official clearance. I would recommend against that, though. In fact, I would verify their credentials, make them comfortable, alert your team, and then go from there.
It is the OSHA inspector’s responsibility to investigate all of the pertinent conditions of the complaint and request a litany of related information such as injury & illness logs, emergency response procedures, and other related compliance documents. They will question the employees that they are going to be interfacing with privately. It’s very important that you understand that if an employee has a complaint that results in an OSHA inspection, OSHA can interview that person privately. The affected employee can also remain anonymous or not, and either way should not fear any retaliation.
One of the key components of an inspection is that the scope of the inspection will certainly expand as appropriate, based on what the inspector sees. This means that the tour route you select to accompany them to the site of the alleged violation is important.
Preparing for an inspection is something that you should be thinking of already, and if you haven’t, I strongly recommend that you do. It’s very important that you have a team of employees available to participate in an OSHA inspection should one occur. As a result of putting that team together, you should also develop some procedures and provide some training to help them understand what their role would be.
The nature of the inspection will dictate what the inspection team makeup should look like and who would be involved. Like most teams, depending on the situation, not all members would be involved in the inspection. You can choose who is involved in the opening conference depending on the complaint, but you may want to have everyone involved in a closing conference so there’s no mistake of what you’re expected to do. You might include safety personnel, operations, maintenance, human resource people, and even legal. Not everyone will be on the jobsite, but you should make them aware that there’s an inspection taking place. Welcome any guidance these jobsite experts can provide, and if there is a violation, they can be involved along with the bargaining unit. You will probably have multiple contractors on the site, and if one is involved in an alleged violation, then you can drill down and have other people get involved as needed.
Inspection preparation is a perpetual task that you should be doing to ensure compliance with all applicable standards. Know what you’re doing. If you’re a typical construction site, you know the big issues are fall protection, safety around powered industrial tools, personal protective equipment, excavations, scaffolding, ladders, and any other hazards specific to the site.
Pay close attention to training. What are you doing to prepare your employees? Look at the current OSHA Top 10 periodically and ask, “Do we have any of these issues on our site?” If so, are you addressing the issues and providing proper training? (Check out Part 1 of Fearing’s OSHA discussion on the Top 10 in the November 2021 issue of CoatingsPro.)
COVID-19 Implications
One of the big changes is the Emergency Temporary Standard (ETS) related to COVID-19. For example, any injury or illness associated with work-related COVID-19 requires a separate log beyond the traditional OSHA 300 Log. Always know what your recordkeeping metrics are, understand the National Emphasis Programs (NEPs), and ensure you are meeting all requirements.
Unless you’re in general industry, the OSHA Site-Specific Targeting (SST) program does not apply to your operations. However, it may still be included in your organization’s written guidance regarding OSHA compliance inspections. Compliance inspection information is often included in the emergency action plan along with other functional responsibilities, and this is a good place for it to be housed.
Assigning Responsibility
Generally, compliance inspections fall under the safety umbrella, but it should be a team effort. If you’re going out to an excavation site, you need to talk to the most competent person who can answer questions. The safety representative may not be the right person to give OSHA the answers to preventive maintenance questions. Participating in or managing an OSHA inspection can be a daunting experience, and it helps to have a team familiar with the process and your company’s operations.
OSHA Reporting
If you get that knock on the door from OSHA, it may have come through an employee or a third-party complaint. Work-related fatalities must be reported within eight hours of you being notified. And, of course, any serious, work-related injuries that include hospitalizations, loss of an eye, and amputations must be reported within 24 hours. The key is work-related.
For example, amputation in the OSHA vernacular is a very broad term. Take the time to look up OSHA definitions. Find out how “loss” is defined. When an injury occurs, that’s when your investigation should begin, and you have at least 10 different things you must include in your report to OSHA. Remember, you have three different ways to report, including in person, online, and by phone.
Also, you have seven calendar days to enter the incident on your OSHA 300 Log. If it’s a work-related incident, the numbers are probably up due to COVID-19 cases. Referrals can also occur, which may come from visitors, salespeople, other federal agencies, or local or state agencies.
NEPs are temporary programs that focus OSHA resources on particular hazards, or high-hazard industries. Construction is a high-hazard industry. The COVID-19 NEP is the newest one. Silica obviously is on the list as well. Amputations is another relatively new one. But excavations, including trenching, has been on NEP’s list the longest — since 1985. It’s supposed to be a temporary program, but it continues to be an issue as a result of inspections data.
What to Expect
When a compliance officer shows up at the door, the inspection process will have four steps. First, the officer will tell you why he/she is there and will provide you with identification. Always verify the officer’s identity. Shady practices and industrial espionage do happen in real life. Recently, in California, there was a high-profile case of a masquerading compliance officer at a particular site.
Once you have the verification, contact your OSHA compliance team members and conduct the opening conference. The opening conference will set the stage for what happens over the next hour, day, week, or longer.
Prior to the opening conference, the inspector will allow you at least up to four hours to get your team together. Keep in mind that the inspectors are trained professionals, and they do homework before they get there. They arrive ready to go, so you want to be courteous and professional, but you don’t want to give them more information than they’ve requested. They will ask for a great deal of information, including injury records and protective equipment hazard assessments.
We’ve talked a lot about PPE, and you probably know a lot about it, but anytime an employee wears PPE, there should be a documented risk assessment indicating why he/she is wearing it. You must provide written documentation stating why you determined that the employee needed to wear a mask, gloves, a shield, etc. versus eliminating the hazard involved or using engineering controls to reduce the hazard.
Once you’ve gone through the opening conference, you will begin what’s called the inspection tour or walk around. OSHA uses a Plain View Doctrine, and their plan is to go where the complaint occurred. However, they will deviate as other issues develop during their tour. It’s very important that you accompany them and that you have the right people with you as appropriate to answer questions. It’s a bit more difficult in construction than it is in general industry, but if they say it’s an excavation issue or scaffolding issue, you need the competent person in attendance. If it’s a training issue, you need the authorized trainer, human resources, or whomever conducts and keeps your training records.
Inspectors will look at a variety of related issues. They’ll take pictures, they’ll interview employees, and if the employee is hourly, it’s confidential. If they interview a salaried employee or management team member, they will do that in your presence. They’ll take measurements. They’ll make observations. A team member should try as best as possible to duplicate whatever they do.
The walk around generally is a one-time event, but it could take multiple days. Once it’s completed, you’ll have a closing conference. This is where the inspector will tell you what he/she saw but not whether it’s going to result in a citation. Inspectors will give you their view of what they saw, and they may ask you more questions. This is the perfect time to ask your questions.
Whether it’s the opening conference or the closing conference, never give the inspector more information than what he or she requests.
In the final step, the OSHA Area Director (AD) will speak with the compliance officer, and they will determine whether or not there will be a citation and related penalty. They will also inform the employer of his/her rights.
Depending on what happens, you can request an informal conference with the Area Director that may or may not include the inspector. They will allow you to provide additional information, but the AD has up to six months to issue the final summary of what’s going to take place. The AD can also negotiate with the employer regarding penalty amounts during this time.
Potential Penalties
With any OSHA violation, there’s a minimum penalty and a maximum penalty. OSHA provides a table that will give you those ranges. This goes up about 2 percent every year. In 2016, the maximum for a serious violation was $7,000. Now, it’s almost double that. And, of course, the same exponential increases are reflected in willful citations and in failure to abate citations.
Failure to abate is when you agree on an item, a process, and a timeline to correct an issue, and you have not made the correction at the time of the follow-up inspection. OSHA can cite you up to $13,000 per day until it is corrected. Willful and repeat violations are violations indicating that you knew that what you were doing was not correct or not consistent with the standard or with good industrial practices. The circle never stops, if you will, and a repeat violation is clearly a repeat item of the same issue, even at a different one of your locations. These violations could result in what OSHA refers to as egregious violations and a much stiffer penalty.
The penalties on the maximum side can be reduced depending on circumstances. For example, the smaller your company, the greater the reduction. If your company has more than 250 employees, there’ll be no reduction. However, your historical good faith, your legacy with OSHA, and if your violations are other-than-serious citations, OSHA will take that into consideration.
General Duty Clause Citations
The OSHA “It’s the Law” poster should be prominently displayed to inform all employees about their rights. OSHA also emphasizes your responsibilities in terms of safety and health in the workplace. The General Duty Clause, or 5(a)(1), allows OSHA to cite you when a standard does not exist, providing certain conditions exist. These would include items such as housekeeping and excessive manual lifting, which could cause a muscular-skeletal disorder injury or illness.
Another frequent offense is the multi-employer citation policy. On a typical construction site, there’s an employer on the site, a subcontractor who may create the hazard, other subcontractors that are exposed, and those whose responsibility it is for correcting the hazard. In other words, there’s a general contractor, the creating contractor, the exposed contractors, the controlling contractor, and so forth. OSHA considers which is which very carefully before determining which one is liable.
After an OSHA inspection, you have a lot of responsibilities for correcting the violations cited, informing your employees, and posting any citations. Information in this regard is available to you in OSHA’s “Know Your Rights After an Inspection” resource guide. Remember, you must post any citations for three working days. You can no longer post it on a Friday afternoon and take it down on a Monday morning.
Hazard Communication
There is also a revised health standard coming, and we’ll need to have more emphasis on the communication of hazardous chemicals, or “right to know,” at worksites. This includes OSHA’s Hazard Communication Standards (HCS) standard, aka HazCom, which has a proposed rule that brings the existing HCS standard up to version seven of the Global Harmonization System (GHS) of Classification and Labeling of Chemicals.
For example, in the construction industry, there are new requirements, particularly in terms of container sizes, and also for aerosols. With container sizes, we had the bulk shipments, and then we had transfer containers. Now we have various sizes — small, very small, and so forth. That’s going to create a lot of additional labeling and training requirements for employers.
Inspection Notice Criteria
A question that frequently arises regarding OSHA inspections is: Why doesn’t OSHA announce its intention to conduct an inspection in advance? That’s a good question. The simple answer is that the OSHA Act does not allow them to. If we dig deeper, it’s not difficult to see how that could lead to problems. If you knew that an OSHA inspection was coming tomorrow, this afternoon, or next week, there would probably be a lot of things in place that perhaps wouldn’t have been in place if you didn’t know OSHA was coming.
Keep in mind that the purpose of an OSHA inspection is to gain a snapshot of the reality of your jobsite or workplace. It probably wouldn’t be an accurate representation if you knew the OSHA inspector was coming and you made changes solely for the purpose of the inspection.
Good luck with your inspection preparations, and remember to keep your eye on OSHA’s Top 10 and your employees’ best interests in mind.
Note: This is the second article of a two-part series (part one was published in the November 2021 issue of CoatingsPro). The content in this article is from a webcast originally presented by Jack Fearing. Watch it on demand at www.coatingspromag.com/webcasts.
JACK FEARING, CPEA, managing partner for Fearing International Group LLC (FIG), has more than 35 years of experience in occupational safety and health management in both construction and general industry. He is a certified health and safety auditor, an OSHA-authorized 10/30 hour instructor, and a professional member of the New Jersey Chapter of the American Society of Safety Professionals (ASSP). He was the NJASSP Safety Professional of the Year in 2019. He is a retired U.S. Army LTC and Senior Army Aviator & Aviation Safety Officer, and he served more than 30 years of military service on both active duty and in the Army reserves. For more information, contact: Jack Fearing, jack@fearing-international.com.
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