OSHA - OCCUPATIONAL SAFETY and HEALTH ADMINISTRATION

• Barbara Smith– Industrial Hygienist

• Calumet City Area Office– (708) 891-3800

EnforcementRegion V

FederalIllinois, Ohio, Wisconsin

Except employees of “local” Government

State PlansIndiana, Michigan, Minnesota

OFFICES in ILLINOIS

AURORA - (630) 896-8700CALUMET CITY - (708) 891-3800CHICAGO NORTH - (847) 803-4800PEORIA - (309) 589-7033FAIRVIEW HEIGHTS - (618) 632-8612

REGION V - (312) 353-2220

OSHA at 40

• Dr. Michaels’ Vision– Stronger enforcement: Some employers need

incentives to do the right thing.• Increased Penalties

– Ensure that workers have a voice

– Refocus and strengthen our compliance assistance programs

– Change workplace culture: Employers must “find and fix” workplace hazards

• I2P2 – Injury and Illness Prevention Program

TopicsRegulatory / Unified Agenda– Combustible Dust– I2P2

Other Topics– Incentive Programs– New Penalties

Combustible Dust

• Published ANPRM 10/21/09

• Held Stakeholder meetings ▬December 2009, Washington, DC ▬February 2010, Atlanta, GA, ▬April 2010, Chicago, IL ▬June 2010 Virtual stakeholder meeting

• Expert Dust Forum May 13th, 2011

• Next step: “Small Business Regulatory Enforcement Fairness Act” (SBREFA) – Fiscal Impact Study

Issues Raised in Combustible Dust Stakeholder Meetings

• One size does not fit all – not all dusts are the same

• Differing opinions on how to define combustible dust

• Debate over a performance-based vs. specification-oriented standard

• Some did not want outright adoption of NFPA standards

INJURY and ILLNESS PREVENTION PROGRAM

(I2P2)

Injury & Illness Prevention Programs – Purpose

• To provide tools for employers and workers to find and fix their own workplace hazards.

• To enhance workers’ voice in the process.

• Require employers to implement their own process to proactively address workplace hazards.

State OSHA Programs with I2P2 Requirements

• California (CalOSHA)

• Washington – Division of Occupational Safety and Health (DOSH)– Accident Prevention Program

• Minnesota (MnOSHA)– A Workplace Accident and Injury Program– (AWAIR)

I2P2 MODELs

• Cal OSHA 8CCR 3203 – (Model Program Elements)

• Responsibility• Compliance• Communication• Hazard Assessment• Accident / Exposure

Investigation• Hazard Correction• Training (Instruction)• Recordkeeping

• Safety and Health Program Management Guidelines (1/26/89)

– VPP Elements

• Management Commitment• Employee Involvement• Worksite Analysis• Hazard Prevention /

Control• Training (Understanding)

Injury and Illness Prevention Programs

• Stakeholder meetings:• June 3, 2010; East Brunswick, NJ• June 10, 2010; Dallas, TX• June 29, 2010; Washington, DC• July 20, 2010: Washington, DC• August 2, 2010: Sacramento, CA

• Next Step: Initiate SBREFA June 2011• Currently in “Pre-Rule” Stage (Regulatory Agenda)• Stakeholder meeting notes summaries link:

– https://www.osha.gov/dsg/topics/safetyhealth/index.html

Comments Raised in I2P2 Stakeholder Meetings

• The standards should be flexible yet enforceable

• The standards should be simple yet detailed

• Safety committees are effective, yet may run afoul of the NLRA

• Management systems are desirable, yet small businesses may not implement them

• Write a performance standard yet tell employers and compliance officers exactly what is required

• Everyone should have a written program, yet written programs tend to sit on a shelf

Incentive Programs

• Based on Injury / Illness Rates– Managers and / or Employees– Bonuses / Lunches / Hourly Incentives…

• Do they INHIBIT the reporting of Accidents / Incidents ?

Incentive Programs

What Are Incentives?

• A mechanism for inducing someone (as employees) to do something

• Lower DART, No Lost Time, etc• Dr. Michaels – “Unfortunately, it appears that

there are many employers, particularly in high-hazard industries, that have implemented programs, inadvertently or by design, that discourage injury reporting.”

Safety Incentives Gone Wrong

• In a Missouri food warehouse, 150 workers load and unload trucks, lift boxes, drive fork trucks, and move endless pallets

• Each month that no one reports an injury, all workers receive prizes, such as $50 gift certificates

• If someone reports an injury, no prizes are given that month

• But it gets worse….

Safety Incentives Gone Wrong

• Last year, management added a new element to this “safety incentive” program:

– If a worker reported an injury, not only would co-workers forgo monthly prizes but the injured worker had to wear a fluorescent orange vest for a week

– The vest identified the worker as a safety problem, and alerted co-workers: he lost you your prizes

Do Incentives Work… Or Not?

• You often get what you measure - especially when there are large financial incentives

• One Plant Manager received $250,000 for achieving a lower DART rate at the plant

• Several safety managers report it is the only criteria for bonuses up to $25,000

• Management by Objective is dominant in all aspects of business– Quality, Sales, Production, Safety

Dr. Michaels

“If accurate injury records are not compiled because workers believe they will be fired for reporting an injury, or supervisors fear they will lose their bonuses or even their jobs if workers report injuries, real safety is not being achieved.”

Dr. Michaels

“Depending on the environment, workers may fear being fired if they report an injury, or may be pressured by co-workers not to report in order not to jeopardize a group reward.”

Another Example• Injured employees are put on restricted duty • Then they are restricted to working only 36

hours per week • This causes the employees to lose money

while they are on restricted work • In addition to losing hours and consequently,

money, the employees cannot work or earn overtime while on restricted work

• So the employees counter by…..

Another Example cont.• Employees on restricted work tell the

company doctor they are feeling better when they are not so they can go back to full time and their regular pay

• It was also learned during employee interviews that employees have made deals with their supervisors to go on restricted work without telling the Nurse’s Clinic so they do not have to lose hours and, therefore, money because they cannot afford it

NEW Penalties

Increased Penalties Background

• OSHA penalties have not been adjusted for over two decades

• Work group assembled to evaluate the Agency’s penalty policies

• Conclusion of the work group – current penalties are too low to have an adequate deterrent effect

• New changes announced April 22, 2010

Administrative Penalty Changes

1. Gravity-Based Penalty

2. Size3. History4. Good Faith5. Increased Minimum

Penalties6. Severe Violator

Enforcement Program

7. Repeat Violations8. Informal Conference

Consideration9. Application of

penalty adjustment factors

Gravity-Based Penalty

OLD NEW

High/Greater $5,000 or $7,000 $7,000

Medium/Greater $3,500 $6,000

Low/Greater $2,500 $5,000

High/Lesser $2,500 $5,000

Medium/Lesser $2,000 $4,000

Low/Lesser $1,500 $3,000

Size

OLD NEW

1 - 25 60% 40%

26 - 100 40% 30%

101 - 250 20% 10%

251 or more None None

HistoryOLD NEW

Consider previous 3 yrs

10% reductionInspected and no SWRF citations in the previous 5 yrs

10% reduction

Citations within the previous 3 yrs

No reductionInspected and HG citations issued in the previous 5 yrs

10% increase

Never inspected or no HG citations in the previous 5 yrs

No reduction

or increase

Good Faith

• New policy will retain evaluating an employers safety and health program

• The additional 10% reduction for participation in a strategic partnership has been eliminated

Increased Minimum Penalties

• Minimum penalty for a serious is increasing from $100 to $500

• Minimum penalty for a posting violation will increase from $100 to $250 if the company was previously provided a poster by OSHA

Repeat Violations

OLD NEW

Proposed if a final order citation in the previous 3 yrs

Proposed if a final order citation in the previous 5 yrs

Informal Conference Consideration

OLD NEW

-AD may reduce penalty up to 50%

- AD may reduce penalty up to 30%. > reduction requires RA approval

Greater than 50% requires RA approval

- AD may offer an additional 20% if an outside H&S consultant is hired

- No longer allow penalty reduction when employer has an outstanding balance owed to OSHA at this establishment or others.

• OSHA– www.osha.gov– 1-800-321-OSHA (hot line)

• Consultation Programs– 800-972-4216 / (312) 814-2337– www2.illinoisbiz.biz/osha/index.htm

– Indiana – INSafe (317) 232-2688– www.in.gov/dol/insafe.htm

Questions