The kinder, gentler Occupational Safety & Health Administration (OSHA) that existed under President George W. Bush has been replaced since 2009 with a much more aggressive enforcement approach under President Barack Obama. And if you haven’t taken safety seriously, you should. It is not only the right thing to do. It is expensive if you ignore it in terms of lost production and potential government fines.
The problem is that it seems OSHA is becoming increasingly aggressive when it comes to enforcement and leveling fines cautioned Adele Abrams, noted safety lawyer who also runs the National Wooden Pallet & Container Association (NWPCA) safety program.
Abrams told attendees at the NWPCA’s Annual Leadership Conference that even efforts to help make your workplace safer could backfire if not done properly. For example, some safety incentive programs tied to incident reporting, such as days without an accident, could produce fines if OSHA deems it discourages employees from reporting problems. Abrams suggested using safety incentives that reward employees for taking proactive safety measures, conducting job safety analysis, etc.
And it looks like the current enforcement focus is only going to get more severe with new rules changes in the works. Abrams cautioned that OSHA is working on developing an Injury and Illness Prevention Program (I2P2) similar to what the state of California has in place. This is the centerpiece of Obama’s OSHA enforcement initiatives and is expected to be finalized later this year or sometime next year.
Abrams said that “I2P2 in essence requires you to go through your entire workplace, analyze and evaluate it for every possible risk and hazard, and then develop procedures on how you are eliminating or mitigating those hazards. It could be personal protective equipment. It could be improved ventilation systems or getting rid of one type of equipment or chemical substance for
another. I2P2 is like a supercharged general duty clause that will cover things that OSHA hasn’t even written rules for yet. It will cover things like ergonomics.”
In states that have I2P2 standards in place, Abrams said that OSHA has cited companies for both the I2P2 rule as well as whatever general standard was violated, which allows OSHA to double up on fines for one infraction. Abrams explained, “This is pretty much going to double up the cost of any inspection that you have down the road. And it encompasses both safety hazards and health hazards.”
Overall, companies should be aware that a couple of years ago OSHA changed the statute of limitations for repeat violations from three to five years. Also, the reductions given to small employers were reduced. Penalties were not increased. But the reductions given to employers were decreased under these new penalty policies. So, if you have faced fines lately, you may have already noticed the higher price tag at the end of the day.
IFCO Fines Offer Industry Lessons
One of the biggest names in the pallet industry recently faced fairly significant fines after an inspection. OSHA cited the largest recycler in the country, IFCO Systems North America Inc., with 10 serious, three repeat and six other-than-serious violations for exposing workers to safety and health violations at its facility on Tacco Drive in San Antonio, Texas. This facility was inspected as part of OSHA’s Site-Specific Targeting program, which directs enforcement activity to work sites with higher-than-average injury and illness rates. The proposed penalties total nearly $164,000.
OSHA issued a press release because the fine amount totaled over a specific threshold. This citation report provides a number of lessons for the pallet industry. Specifically, the areas of concern are machine guarding for any equipment with rotating shafts, hearing protection issues, and injury/illness reporting.
Leroi Cochran of IFCO Systems said, “IFCO takes the findings made by OSHA very seriously and we are immediately addressing all of the OSHA recommendations and we are conducting a follow-up safety review at all of our facilities.”
According to Cochran, IFCO provides regionally dedicated safety and HR managers who audit each IFCO facility quarterly and work with local management to ensure compliance. IFCO also offers incentives for employees to meet both individual and team based safety goals as well as regular safety training for all employees.
“IFCO has been very proactive. They have corrected the alleged hazards in 90% of the cases. I have met with them, and we have not settled the case as of yet. But I am optimistic that we can,” said Jeff Funke, the agency’s area director in San Antonio.
When a company is cited by OSHA it has three options to react and is required to do one of these in 15 working days. A cited company can correct the hazards and pay the penalty, meet with the area director for a consultation to negotiate a settlement, or contest the violation with a written contest notice. An administrative law judge will decide the outcome of contested citations. Funke suggested, “An informal consultation with the area director is well worth the time.” And in this case, that is what IFCO chose to do although it could still contest violations if the negotiation doesn’t produce a suitable outcome.
In this inspection, IFCO was cited for improper guarding of a rotating shaft for a wood grinder. The company was cited for a similar problem on a different kind of equipment at another plant within the five year statute of limitations. Funke explained, “If we cite a general standard, it better be the same piece of equipment or we are on shaky legal ground. In this case, it was a rotating shaft, and a rotating shaft is a rotating shaft regardless of the piece of equipment.”
Funke suggested that many of the large grinders on the market today are not properly guarded coming from the factory. The argument that’s how it came from the factory doesn’t matter when OSHA comes to visit. Funke said, “There is machinery built in this country every day that is not OSHA compliant. It is the burden of the employer to inspect machinery and add guards as needed.”
If you have open rotating shafts on any equipment, you are at risk of an OSHA violation. This hazard needs to be mitigated by proper guarding. Funke said, “Rotating shaft can be guarded with anything. With a rotating shaft, you can cut the shaft off so that it is flush. You can put a stationary cap over the top so that you can’t get snagged on it or wrapped up in it. Or you can make your own guard that goes over the top.”
Another issue of note at the IFCO facility was improper incident reporting in its OSHA 300 logs. Whenever you have a workplace incident resulting in an injury or illness, you are required to record the issue by describing what part of the body was affected and what caused the incident. Be as specific as possible. In this case, there wasn’t enough detail in the log, which cost IFCO $4,000.
Funke said that you need to be able to identify the body part from the description. Thus, writing a “finger laceration” is insufficient, but “right index finger lacerated with a utility knife” is fine.
Finally, OSHA cited IFCO for not effectively recording hearing loss, retraining and refitting employees with hearing protection. Because hearing loss is a permanent disability, OSHA takes it very seriously. Funke suggested that almost any company dealing with wood likely meets the minimum threshold requiring a hearing conversation program. This involves noise monitoring, annual biometric testing to detect employee hearing loss, providing hearing protection, training and
monitoring employee compliance, etc. Excessive noise (over 100 decibels) requires engineering controls to mitigate noise levels.
OSHA Focuses on Combustible Dust Concern for Wood Products Firms
Earlier this year, OSHA cited a sawmill in Georgia for multiple serious health and safety violations, including some related to combustible dust. The alleged violations related to combustible dust include failing to establish and implement a hazard communication program for workers exposed to combustible dust and preventing the accumulation of combustible dust.
Since 2008, OSHA has made a pointed effort to crack down on companies that could pose a combustible dust risk through its Combustible Dust National Emphasis Program. As a result, the possibility of related citations and fines is now especially high for companies in the forest products industry. Although OSHA, at present, does not have a specific standard on combustible dust hazards, there are several existing standards that apply to combustible dust handling facilities. The emphasis program focuses on these standards, as well as the General Duty Clause.
Because wood processing facilities are especially susceptible to combustible dust, companies need to take proactive steps to mitigate associated risks. The most recommended way to do so is to establish and maintain good housekeeping practices. This includes proper ventilation, extraction and removal systems, dust collection systems, and regular manual removal where automated collection systems cannot reach. Areas such as ducts and piping near ceilings, ledges, tops of equipment and electrical panels and any hidden areas where dust may accumulate should be regularly inspected.
Another important step is training workers to recognize and prevent associated hazards. Employers with hazardous chemicals, which include combustible dusts, in their workplaces are required to comply with OSHA’s Hazard Communication standard. This includes using material safety data sheets, and providing employee training. Training should occur before an employee starts work, periodically to refresh their knowledge, when reassigned, and when hazards or processes change.
Tips and Tricks to Play It Safe
When it comes to having safety programs in place, it all starts with analysis and then developing a written program. But it isn’t enough to just have a program in writing. You need to train employees regularly on all procedures. You need to offer both English and Spanish training if you have any Hispanic employees. You need to monitor compliance and provide warnings and corrections for employees who do not follow the procedures. And you have to document and keep records on everything. This includes who attended what safety demonstration and when it was held.
Some of the top areas of concern for pallet and lumber companies include: amputation, combustible dust, hearing loss and noise levels, wearing proper safety gear, lock out/tag out of equipment, falling hazards, forklift safety and more. Abrams explained that you must also account for state regulations that may be stricter than federal OSHA standards.
If OSHA does come knocking on your door, you need to be smart about what you say. Abrams stated, “Nothing is ever off the record when it comes to OSHA.” She said that it is important to review rights and requirements with employees before OSHA ever visits.
The right to privacy belongs to the employee not the OSHA inspector. Neither you nor your employees have to conduct safety demonstrations or talk to OSHA. At the same time, employers cannot prohibit employees from talking to OSHA or allowing an employee to speak in private with an OSHA inspector.
Companies should be aware that independent safety audits conducted by employers can be obtained by OSHA in enforcement proceedings if they want to show willful violation of a standard. This could come back and haunt you if you haven’t remedied the problem. Abrams commented that the only type of audit that can be held strictly confidential is one conducted by your legal counsel. If this information is shared with insurance providers or other parties, it opens you up to exposure.
Any company that operates multiple facilities must be aware that a violation caught at a separate facility can be considered a repeat violation if found at a different facility owned by the same corporate parent. Thus, companies must work to share problems and violation issues across multiple locations. The lists of rules and ways that OSHA can get you seem to go on and on.
The best defense against serious OSHA fines is to stay up-to-date on the latest regulations and work to fix any problems.
OSHA Safety Program
The NWPCA Plant Safety & Health Program, which includes an industry specific manual, is an important resource for pallet and lumber companies to utilize. The NWPCA is going to update its manual this year, and Adele Abrams is available for private consultation. Find out more by contacting Abrams at safetylawyer@aol.com or calling 301/595-3520.
