No Bull Business Blog

Don’t give in to OSHA nitpickers

Excepted from the Executive Report: Surviving an OSHA Inspection – Key Steps Before, During and After

OSHA inspectors have a well-deserved reputation for being the ultimate nitpickers. Once they show up at your door, they’re going to try to find something wrong and nail you for a violation. In recent years, OSHA has worked a little on its nitpicking image. They now say they won’t fine you for picayune violations like failing to display the required OSHA poster – they’ll just go to the car and get one for you – but there’s little else that will escape their attention and their sharp pencils.

OSHA regulations can be incredibly complicated and specific, and it’s not that hard to run afoul of one of the agency’s regulations, for example on the exact distance a machine guard has to be separated from a nip point by a matter of a fraction of an inch.

Companies are often tempted to agree to a minor, non-serious violation, pay a small fine of a few hundred dollars, and write it off as the cost of doing business. You promise not to do it again or fix any deficiency, and hopefully you can get on with life. However, most attorneys will advise their corporate clients not to “plead guilty” too fast and explore all opportunities for contesting even minor violations.

The problem with agreeing to and accepting a citation and a fine is that it’s often not the end of something bad, but merely the beginning. Once OSHA has inspected you at least one time and found something wrong, the agency may well be your pen pal for life. It’ll surely check up on you to see if you’re corrected what it found wrong. And if it’s still not satisfied, it can level repeat or failure-to-abate violations against you with significantly higher fines that will sting a lot more.

Moreover, if an employee ever gets hurt on your premises and finds a lawyer to sue your company for gross negligence or willful disregard for safety, seeking a big payout over and above workers’ compensation insurance benefits, the plaintiff’s lawyer will surely use the fact of your previous safety violation as evidence of your supposed blatant disregard for worker safety. You don’t want to give them a record to build their case on.

DIGGING DEEPER
Even the best companies get inspected by OSHA. The key is to be prepared. Find out what you need to do by reading the Executive Report: Surviving an OSHA Inspection – Key Steps Before, During and Afte

Workplace fatalities down – but far from extinct

The annual census of fatal occupational injuries offers a reminder that workplace deaths aren’t a thing of the past yet, by far.

 

The rate of fatal injury for

U.S.

workers last year was 3.7 per 100,000.

 

In 2007, 5,488 employees died from workplace injuries according to the Bureau of Labor Statistics (BLS). That’s down from 5,840 in 2006, a 6% drop.

 

While the total number of fatalities dropped, there are several areas in which they increased:

• The number of fatal falls in 2007 rose to an all-time high of 835. The increase was driven by rises in falls on the same level and falls from nonmoving vehicles.

• Construction continues as the industry with the most fatalities.

• Transportation and warehousing had the second largest number of fatalities.

• Fatal injuries by African American workers were at the highest level since 1999.

• Workplace homicides rose 13% to 610. Homicides involving police officers and supervisors of retail workers both saw substantial increases.

• The overall number of fatalities among police and firefighters rose.

 

More info: www.bls.gov/iif/oshcfoi1.htm

 

 

DIGGING DEEPER
A safe workplace requires that frontline managers lead the way. How do you do that? Check out the Executive Report: Turn Good Supervisors into Great Safety Leaders.

 

Workplace safety: Think globally

You’ve probably heard this plenty of times: Workplace safety saves money by lowering costs associated with employee injuries, such as workers’ compensation claims

Of course, saving money is great. But there’s another reason U.S. companies should pay attention to worker injury rates: Competition.

Whether a company’s competition is down the road, across the country or, in the global economy, half a world away, cutting workers’ comp and medical insurance costs will help businesses compete successfully.

Edwin Foulke and Dr. John Howard, Directors respectively of OSHA and the National Institute for Occupational Health and Safety (NIOSH) both said during the American Society of Safety Engineers’ Safety 2008 conference that as companies look to cut costs by moving operations overseas, upper management can help keep jobs in the U.S. by saving money on safety.

Foulke said saving money through safety can help U.S. companies stay tops in productivity, efficiency and quality.

Info: www.aven.com/conf.cfm/cid/1057 for audio of ASSE’s Safety 2008 sessions.

DIGGING DEEPER
Safety training is often repetitive, which makes it boring for some workers. To make training interesting (and to get it to stick), look at the Executive Report: Safety Training Ideas Worth Stealing.

OSHA: We’re getting better at inspections

When OSHA takes a look in the mirror, it sees an agency that’s getting better at inspections.

That was a major theme in a presentation from OSHA’s Enforcement Program Director, Richard Fairfax, at ASSE’s Safety 2008 conference in Las Vegas.

What’s he mean by better? Fairfax says the agency is hitting more of the worst offenders than ever.

So far in fiscal year 2008 (that started Oct. 1, 2007), 59% of OSHA’s inspections have been “targeted.” That means they’ve been at companies with higher than industry average injuries or at facilities targeted under local emphasis programs.

Only 41% of inspections are now because of complaints or accidents that cause injuries or fatalities.
The number of companies found in compliance after inspections has dropped from 26% in 2007 to 22% this year.

OSHA says that’s a good thing because it wants its inspections to uncover problems.

The federal safety agency is on target to match the number of inspections last year – a bit above 39,000. It’s also on track to issue citations for about 88,000 violations.

Of those violations, 76% are categorized as serious, which bring higher penalties. That’s the same as last year.

OSHA has found only 21% of whistleblower reports to have merit.

Hazard communication is still the most cited violation.

DIGGING DEEPER
A safe workplace requires that frontline managers lead the way. How do you do that? Check out the Executive Report: Turn Good Supervisors into Great Safety Leaders.

OSHA fatality stats revised, deaths increase

The 2006 fatality numbers released by OSHA’s Bureau of Labor Statistics in August weren’t quite final. For one category in particular, they reflect an unfortunate increase.

According to figures just released, the revised numbers bring the U.S. workplace fatality count up from 5,703 to 5,840.

Specifically, there were 52 more Latino worker deaths.

OSHA says the final census numbers have always been higher than the preliminary figures, since the agency first began collecting data.

The revised figures mean workplace deaths actually rose over 2% between 2005 and 2006. This contrasts with the decline shown by the initial data.

What else does the new count show?

• Fatalities for Hispanic workers rose from 923 in 2005 to 990 in 2006,
• 89 deaths were added to California’s total, ranking it past Texas as the state with the highest number of work injuries, and
• 15 other states saw their fatality counts rise.

Hardest hit were the transportation and construction industries: They both saw higher fatality counts.

DIGGING DEEPER
A safe workplace requires that frontline managers the way. How do you do that? Check out the Executive Report: Turn Good Supervisors into Great Safety Leaders.

New PPE reg gets enforced May 15: What you have to pay for

Heads up: OSHA starts enforcing its new rule that requires employers to pay for employees' PPE on May 15.

In a nutshell, if OSHA requires PPE for compliance, employers have to pay for it.

Exceptions and clarifications

After eight years of study, the rule does include some very limited exceptions from employer payment:

• non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and
• shoes or boots with built-in metatarsal protection that the employee has requested to use instead of employer-provided detachable metatarsal guards
• logging boots required by OSHA rule 1910.266(d)(1)(v), and
• everyday work or ordinary clothing, skin creams or other items used solely for protection from the weather.

If various components are needed for PPE to provide adequate protection, then a company has to pay for those components.

Employers are responsible for paying for replacement PPE when it wears out from regular use. However, companies aren’t required to pay when workers intentionally damage or negligently lost PPE.

All part-time or short-term workers are covered the same as full-time employees,

DIGGING DEEPER
Following the new PPE rules are mandatory, but there's also no need to pay for PPE that you don't to. To get a full understanding of the regs, you're invited to check out the Executive Report: OSHA's New PPE Reg - What You Do and Don't Have to Pay For.

A little help from the Navy to promote safety

Excerpted from Turn Good Supervisors into Great Safety Leaders.

If you’re ever hunting for just the right thing to say to an employee who’s not buying into your safety efforts, you’re not alone.

The U.S. Navy has a long list of safety quotes and slogans it uses to drive home its message. Here are a few:

• A safer you is a safer me.
• A worker who doesn’t follow safety rules is a fugitive from the law of averages.
• Working safely is like breathing, you never want it to stop.
• Electricity can turn you off
• If you think safety is a pain, try a leg fracture.
• Alert today, alive tomorrow.

DIGGING DEEPER
Every business has someone in charge of safety, but to have a safe workplace requires that frontline managers take the lead in ensuring safety. How do you do that? Check out the Executive Report: Turn Good Supervisors into Great Safety Leaders.

OSHA tips its hand on upcoming inspections

Of course, OSHA doesn’t announce  most of its workplace inspections, but it does give clues from time to time about where its inspectors will show.

About 14,000 businesses have received notices from OSHA that their injury and illness rates are considerably higher than the national average.

Workplaces receiving notices had 5.4 or more injuries resulting in days away from work, restricted work activity or job transfer (DART) for every 100 full-time employees. The national average last year was 2.3 DART.

The DART rates come from a survey of 80,000 worksites and their injury data from 2006.

So if your rate was below 5.4 and you haven’t received a letter, you’re in the clear as far as this type of OSHA inspection for the next 12 months.

To keep off this list in the future, it’s best to keep your DART rate below 5.4 this year.

Who’s on the hit list?

So the next question is, of these 14,000 workplaces, how many can expect inspections this year?

About 30% of the companies with the highest DART rates on the list get inspected each year. That was approximately 4,150 inspections last year.

Companies on the primary list for inspections last year had DART rates of 11.0 or higher. Workplaces on the secondary inspection list had rates between 7.0 and 11.0.

OSHA’s message: Don’t wait for an inspector to show up. It recommends its small business Web page for advice.

DIGGING DEEPER
Staying on top of safety issues is never-ending and the best way to keep OSHA away is to reduce employees' at-risk behavior. For great guidelines, check out the Executive Report: Confronting and Changing At-Risk Behavior.

Cost of employee back injuries up 65%

New research leaves no doubt dedicating more of your safety budget to prevent back injuries now will save a lot more money later.

The study in the Feb. 13, 2008, issue of the Journal of the American Medical Association (JAMA) said total expenditures among people with back problems increased 65% (adjusted for inflation) from 1997 to 2005. On top of that, the proportion of people with back or neck problems who have physical limitations increased from 20.7% to 24.7% during the same period.

What’s causing the cost increase? The greatest relative increase was for medications. Doctors are prescribing more expensive new drugs, but without any related improvement in condition.

Since medical science hasn’t improved outcomes for people with back injuries, it’s up to companies to prevent them to reduce costs on the front end.

Best suggestion: Use engineering controls to eliminate as much lifting as possible.

Since it’s often impossible to eliminate all lifting, research from Ohio State University provides the best advice on avoiding injury:

• Schedule more frequent breaks for workers who lift.
• Increase the frequency of those breaks as the workday goes on.
• When possible, assign lifting tasks to workers who have experience.

DIGGING DEEPER
Staying on top of safety issues is never-ending. To help, you’re invited to check out the Executive Report: Confronting and Changing At-Risk Behavior.

Confirmed: Part-timers at higher injury risk

Got part-time employees? It may be worth spending a little extra time and attention to their safety needs.

New research confirms what many have already noted or suspected: Part-time, temporary or contract workers are at higher risk for occupational injuries than workers in full-time positions.

The evidence that shows a higher risk for part-timers is out there:

• The rate of occupational injuries among self-employed workers is twice the national average for all workers.
• Temporary nurses caring for AIDS patients in 11 U.S. hospitals were 1.65 times more likely to suffer needlesticks than the rate for staff nurses working in the same units.
• A survey of day laborers found 19% reported work-related injuries that required medical attention during the course of a year, compared to 6% of all construction workers.
• Contract coal mine workers with at least 15 years tenure had a higher rate of evidence for black lung disease than non-contract workers.

The National Institute for Occupational Safety and Health study calls for more research. The study also notes these workers’ unpredictable schedules contribute to safety and health problems.
For more detail go to the CDC web site.

DIGGING DEEPER
How can you prevent unsafe behavior or terminate continually unsafe employees without lost productivity and legal backlash? To get the details, check out the Executive Report: Terminating Unsafe Employees: What Supervisors Need to Know.

Should injured worker get similar-paying job?

Imagine this: An employee is injured at work, and a permanent disability prohibits her from returning to the same job.

She applies for another position with similar pay, but the company chooses a more qualified applicant.

The company does offer the disabled employee a new position but at about half the pay.

The employee sues under the Americans with Disabilities Act, citing the "reasonable accommodations" required under the ADA as reason why she should be given the better-paying job.

The U.S. Supreme Court was about to hear this case this year, but Wal-Mart, the company involved, decided to settle with the employee out of court instead.

What’s this mean for other companies? It's good and bad news.

The potential good news: The nation's highest court wasn't allowed to issue a definitive decision requiring companies to give injured employees certain jobs – whether they are the best qualified or not.

The bad news: Federal appeals courts across the nation have been split on cases like this. Without a Supreme Court precedent, employees still have a chance to win these types of lawsuits.

Best bet for companies when faced with similar situations: Bring together safety, HR and possibly legal counsel.
Cite: Huber v. Wal-Mart, U.S. Circuit Crt. 8, No. 06-2238, 5/30/07.

DIGGING DEEPER
How can you prevent unsafe behavior or terminate continually unsafe employees without lost productivity and legal backlash? To find out, check out the Executive Report: Terminating Unsafe Employees: What Supervisors Need to Know.

Only 4 months before new OSHA PPE rule kicks in

Employers have about four months to figure out how they will comply with OSHA’s new personal protective equipment payment rule. It requires employers to provide most PPE at no cost to their employees. The rule spells out exceptions for certain types of PPE.

National employment and labor law firm Lilttler Mendelson has this advice for employers:

• Determine what PPE is required in your workplace by OSHA regulations and if any of these items are exempt from the rule.
• Establish who plays for and provides PPE and assess the viability of various PPE inventory control systems within your workplace.
• If your company has a collective bargaining agreement in place, determine if there are any provisions that may.
• Consider creating a policy that provides for employer ownership of protective equipment.
  Determine what your company’s rule will be regarding lost of intentionally damaged PPE.

DIGGING DEEPER:
Following the new PPE rules are mandatory, but there's also no need to pay for PPE that you don't to. To get a full understanding of the regs, you're invited to check out the Executive Report: OSHA's New PPE Reg - What You Do and Don't Have to Pay For.

OSHA OK’d to rake in larger fines: Court opens floodgates for expensive citations

OSHA just got authority to increase the size of fines for safety violations.

A recent Occupational Safety and Health Review Commission (OSHRC) decision has affirmed OSHA’s policy of assessing per-employee penalties when the cited regulation clearly prohibits individual acts rather than a single course of action.

The case goes back more than 16 years to a GM plant in Oklahoma City. A conveyor activated, caught the head of an employee, and killed him instantly.

OSHA assessed penalties totaling $2.78 million.

One reason for the huge fine: OSHA calculated some of the fines for training on a per-employee basis.

GM appealed. Finally, the review commission said the violations are susceptible to citation on a per-employee basis.

The key was the language of the statute that applied in this case. This one requires employers to “instruct each employee.” That language triggers the per-employee fines.

GM’s fine was reduced, but the new total is still huge: $692,000. (Secretary of Labor v. GM, OSHRC Docket Nos. 91-2834E & 91-2950, 12/4/07.)

Also, the U.S. Supreme Court let stand a court ruling that bolsters OSHA’s use of more expensive willful citations.

Two companies had been cited for 141 willful violations and faced fines of more than $1 million. OSHRC grouped the violations together and reduced the total fines to $140,000.

OSHA appealed, and a federal appeals court said OSHRC overstepped its bounds by reducing the number of violations.

The case now goes back to OSHRC to recalculate the fines. Even if the minimum for a willful violation is used, the companies still face combined fines of more than $700,000. (Secretary of Labor v. Jindal United Steel Corp., U.S. Circuit Crt. 5, Nos. 05-61087 & 05-61089, 2/21/07.)

ADDITIONAL INFO:
Staying on top of safety issues is never-ending. To help, you’re invited to check out these Executive Reports: Confronting and Changing At-Risk Behavior and Guaranteeing the Success of Safety Committees.

What do these high-injury jobs have in common?

Which workers are more likely to suffer injuries on the job that lead to days away from work? The Bureau of Labor Statistics’ (BLS) latest report says the average rate of occupational injuries requiring days away from work (DAFW) in 2006 was 128 per 10,000 workers. These specific occupational categories have high injury rates:

• nursing aides, orderlies and attendants, 526 DAFW


• construction laborers, 488 DAFW


• freight, stock and material movers, 466 DAFW, and


• heavy and tractor-trailer truck drivers, 411 DAFW.

What do these four groups have in common? Sprains and strains are the major causes of their injuries.

BLS says the trunk, including the shoulders and back, is the most common body part affected.

ADDITIONAL INFO:
Even the slightest slip-up in an accident investigation can cost your company. To head off trouble, you're invited to consider the Executive Report: Accident Investigations and the Law: What You Should and Shouldn't Do.