OSHA's Enhanced Enforcement in the New Administration

By: Daniel Snyder

When considering the logistical resources of OSHA, It is easy to believe that the odds of being inspected by OSHA are similar to those of winning the lottery; however, it may not be just dumb luck. There are many variables that can determine OSHA's enforcement presence as discussed in this article, but it is the political variable that will determine how much emphasis is place on enforcement compared to compliance assistance programs such as; VPP, Partnerships, Alliances Grants and other OSHA outreach programs.

Good ways for an OSHA Inspection

Traditionally it seems that OSHA's Black hat (Enforcement) operations increase during Democratic Administrations while White hat (Assistance) operations flourish in Republican Administrations. Although OSHA must respond to new challenges from emerging industries, new technologies, and an ever-changing workforce, OSHA's mission remains the same. OSHA enforcement, using mechanisms such as Site Specific Targeting (SST), Local Emphasis Programs (LEPs), National Emphasis Programs (NEPs), and the Enhanced Enforcement Program (EEP), OSHA enforcement remains the agency's focus. Employee complaints and "unprogrammed" inspections also account for a great number of Site visits.

OSHA's Site Specific Targeting Program

With approximately four million workplaces covered under federal OSHA, it is a known that OSHA asks employers to report injury and illness rates to the agency through its annual data initiative. Based on this data, OSHA identifies those with the highest injury/illness rates. It then sends letters to about 14,000 businesses regarding their excessive injury and illness rates in a given year, warning them that "their employees are being injured at a higher rate than in most other businesses in the country" and noting that "a high rate is costly to your company in both personal and financial terms." This letter should get top management's attention in any company quickly, particularly if the rate is high enough to place a facility into OSHA's Site-Specific Targeting (SST) Inspection Program. You can get more information from the OSHA's Site-Specific Targeting Directive Number 04-02 (CPL 02).

OSHA uses the SST program to select individual employers for inspection based on information provided (or in some cases, not provided) by employers that responded to its annual data initiative survey. This survey is a nationwide collection of establishment-specific injury and illness data...The data initiative was launched in early 1996 to help OSHA focus inspection efforts on those establishments with serious safety and health problems.

Employers provide information such as 1) the average number of employees who worked for the employer during the prior calendar year; 2) total employee hours worked during the prior year; and 3) the summary injury and illness data from the employer's OSHA injury log, using the OSHA Work-Related Injury and Illness Data Collection Form. Prior to this initiative, OSHA targeted compliance efforts on an industry-to-industry basis, relying on general industry data from Bureau of Labor Statistics to determine where to focus its enforcement resources. OSHA's Site-Specific Targeting Directive Number 04-02 (CPL 02) took effect Apr. 19, 2004. The notice explains OSHA's SST program, and notes that although state-plan states are not required to adopt SST-04, "states are required to have their own inspection targeting systems (a 'core inspection policy') that must be documented in their state plans." The SST-07 program used 2006 injury and illness data, collected during the 2005 data initiative.

Days Away, Restricted or Transferred (DART) Rate DART includes cases with days away from work, restricted work activity and job transfer. It is calculated by dividing the number of cases involving days away from work/restricted work/transfer by the number of hours worked by all employees during the calendar year. This quotient is then multiplied by 200,000 (100 employees working 2,000 hours per year) to normalize the rate.

OSHA's Enhanced Enforcement Program

The Agency's Enhanced Enforcement Program (EEP) targets employers who, despite OSHA's enforcement and outreach efforts, repeatedly ignore their OSH Act obligations and place their employees at risk. The EEP focuses on cases with extremely serious violations related either to a fatality or to multiple willful or repeated violations. If an inspection is classified as an EEP case, then it may receive, among other things, follow-up inspections, inspections of other workplaces of that employer, and more stringent settlement provisions. During the first four years (FY2004-2007) of the program, OSHA identified an average of 524 inspections per year that qualified as EEP cases. In FY2007, OSHA identified 719 EEP cases, a record high.

OSHA Inspection Activity

By proactively targeting the industries and employers that experience the greatest number of workplace injuries and illnesses, OSHA continues to maintain its high level of annual inspection activity. In FY2007, OSHA conducted 39,324 total inspections. This total represents 4.3% more inspections than OSHA's stated goal of 37,700. This year's significant enforcement action included over one hundred inspections that each resulted in a total proposed monetary penalty of over $100,000. Programmed inspections also showed a 2.7% increase over the same period. Furthermore, in FY2007, OSHA conducted 16,288 unprogrammed inspections, including employee complaints, accidents, and referrals, thus demonstrating OSHA's firm commitment to be continually responsive to employee concerns related to workplace safety and health. By fostering good working relationships with state, local, and other federal authorities, OSHA experienced a significant 12.0% increase over the past five fiscal years in the number of inspections generated through referrals from other governmental agencies.

Local Emphasis Programs Play a Major Role in OSHA Enforcement

Local Emphasis Programs (LEPs) are enforcement strategies designed and implemented at the Regional Office and/or Area Office levels. Nationwide, there are over 150 individual programs (sometimes implemented by multiple offices) that address a wide range of industries and hazards.

During FY2007, OSHA conducted 21,824 inspections (out of 39,324 total inspections) that were related to an LEP. Incorporating localized expertise and knowledge to target specific industries and hazards allows for more efficient use of OSHA's resources.

How to Improve

Start looking at the safety management systems and determine if there are any regulatory or performance gaps. This should be done annually by an outside safety professional even a letter from OSHA was not received. By implementing an effective EHS system companies can reduce injuries with related costs and demonstrate OSHA compliance. Provide professional development for supervisors and safety committees. Teach them how to conduct internal audits, perform closed loop incident investigations, participate in effective meetings, and conduct Performance Based Safety Observations. Top Managers have also benefited from customized workshops designed to best integrate safety into management and supervisory styles.

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Daniel Snyder, M.Ed, CSP, CET, CHMM, CHSP, has assisted companies with improving safety and health processes, prepares for OSHA VPP, conducts workplace audits, facilitates grant funded research to improve safety performance, and designs customized training programs. He is a Managing Partner in the Performance Based Safety, LLC consulting network and serves on the Board of Directors for the Academy of Certified Hazardous Materials Managers.

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