OSHA Releases Updated Workplace Safety and Health Voluntary Practices

To help medium and smaller-size businesses initiate effective safety and health programs, the Occupational Safety and Health Administration today released Recommended Practices for Safety and Health Programs, an update of its 1989 guidelines, reflecting changes in the economy, workplaces, and evolving safety and health issues. The recommendations feature a new section on multi-employer workplaces and a greater emphasis on continuous improvement, OSHA said.

“Since OSHA’s original guidelines were published more than 25 years ago, employers and employees have gained a lot of experience in how to use safety and health programs to systematically prevent injuries and illnesses in the workplace,” Dr. David Michaels, assistant secretary of labor for occupational safety and health said in a statement. “We know that working together to implement these programs will help prevent injuries and illnesses, and also make businesses more sustainable.”
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The recommendations include seven core elements for a safety and health program:

• Management leadership
• Worker participation
• Hazard identification and assessment
• Hazard prevention and control
• Education and training
• Program evaluation and improvement
• Communication and coordination for host employers, contractors and staffing agencies

Implementing recommended practices brings benefits to businesses that include healthier employees, fewer injuries and, ultimately, lower workers compensation costs:

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  • Preventing workplace injuries and illnesses
  • Improving compliance with laws and regulations
  • Reducing costs, including reductions in workers compensation premiums
  • Engaging workers
  • Enhancing their social responsibility goals
  • Increasing productivity and enhancing overall business operations

Because management leadership is an important part of the equation, OSHA recommends that business owners, managers, and supervisors:

  • Make worker safety and health a core organizational value.
  • Be fully committed to eliminating hazards, protecting workers, and continuously improving workplace safety and health.
  • Provide sufficient resources to implement and maintain the safety and health program.
  • Visibly demonstrate and communicate their safety and health commitment to workers and others.
  • Set an example through their own actions.

To establish a program, OSHA said organizations need to create a written policy signed by top management that describes the organization’s commitment to safety and health. By creating specific goals and objectives, management sets expectations for the company’s managers, supervisors and workers. The goals and objectives should focus on specific actions that will improve workplace safety and health, OSHA said.

Tyson Foods Cited for Violations after Employee Finger Amputation

Cited for multiple violations, Tyson Foods was fined $263,498 by the U.S. Department of Labor Occupational Safety and Health Administration after an employee’s finger was amputated in an unguarded conveyor belt, the DOL reported yesterday.

Inspectors found recessed drains and fire hazards resulting from improperly stored compressed gas cylinders, which exposed employees to slip-and-fall hazards due to a lack of proper drainage.

Established in 1935 and headquartered in Springdale, Arkansas, Tyson is the world’s Tysonlargest meat and poultry processing company, with more than $40 billion in annual sales. The company produces more than 68 million pounds of meat per week. OSHA gave Tyson 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

“Tyson Foods must do much more to prevent disfiguring injuries like this one from happening,” Dr. David Michaels, assistant secretary of labor for Occupational Safety and Health, said in a statement. “As one of the nation’s largest food suppliers, it should set an example for workplace safety rather than drawing multiple citations from OSHA for ongoing safety failures.”

OSHA inspectors found more than a dozen serious violations, including:

  • Failing to ensure proper safety guards on moving machine parts
  • Allowing carbon dioxide levels above the permissible exposure limit
  • Failing to provide personal protective equipment
  • Exposing employees to an airborne concentration of carbon dioxide
  • Not training employees on hazards associated with peracetic acid and other chemicals.

OSHA also cited the company for repeated violations for not making sure employees used appropriate eye or face protection when exposed to eye or face hazards. The agency cited Tyson for a similar violation in a 2012 investigation at its Carthage facility. The company also failed to separate compressed gas cylinders of oxygen and acetylene while in storage – a violation for which OSHA cited the company in 2013 at its facility in Albertville, Alabama.

According to OSHA, the inspection falls under its Regional Emphasis Program for Poultry Processing Facilities.

Employer Accountability Targeted by Osha and DOJ

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OSHA and the Department of Justice (DOJ) formally agreed to team their investigations and prosecute worker endangerment violations on Dec. 17, 2015. While the agencies have worked together in the past, this is now a formal arrangement which employers should be very concerned about, especially those with something to hide. Facing OSHA is bad enough, but it’s a walk in the park compared to tangling with the Department of Justice.

“On an average day in America, 13 workers die on the job, thousands are injured, and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked,” said Deputy Attorney General Sally Quillian Yates in a memo sent to all 93 U.S. Attorneys across the country. “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

Deputy Yates urged federal prosecutors to work with the DOJ in pursuing worker endangerment violations. The worker safety statutes provide only for misdemeanor penalties. Prosecutors, however, are now encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence. Title 18 of the United States Code is the criminal and penal code of the federal government, dealing with federal crimes and criminal procedure.

This cooperation could lead to hefty fines and prison terms for employers and individuals convicted of violating a number of related laws. For example, the owner of a roofing company may go to prison for up to 25 years in connection with the death of one of his workers who fell off of a roof. Not only did the worker not have the required fall protection equipment, but the owner then lied to OSHA inspectors.

James McCullagh, owner of James J. McCullagh Roofing Inc. of Philadelphia, pleaded guilty in federal court to six charges in connection with the death of Mark Smith in June 2013. Smith fell 45 feet from a roof bracket scaffold while repairing the roof of a church in Philadelphia.

McCullagh pleaded guilty to one count of willfully violating an OSHA regulation causing death to an employee (failing to provide fall protection equipment) and four counts of making false statements. He admitted lying to investigators that he had provided safety gear and harnesses to his employees when, in fact, he hadn’t.

McCullagh also admitted to telling an OSHA inspector he had seen his employees in harnesses and tied off earlier on the day Smith fell to his death. McCullagh pleaded guilty to one count of obstruction of justice for instructing workers to tell OSHA investigators that they had safety equipment when they did not. He was sentenced in March 2016 to 10 months in prison as well a one year of supervised release and a $510 special assessment.

“No penalty can bring back the life of this employee,” said OSHA chief David Michaels, “but the outcome, in this case, will send a clear message that when employers blatantly and willfully ignore worker safety and health responsibilities, resulting in death or serious injury to workers, or lie to or obstruct OSHA investigators, we will pursue enforcement to the fullest extent of the law, including criminal prosecution.”

While criminal prosecution in worker fatalities is still a rarity, the likelihood of charges being brought increases when there is suspicion of lying to OSHA or other federal officials.

This partnership has been brewing for a while, as the Justice Department has tried to use the nation’s tougher environmental statutes to bring stronger prosecutions of workplace safety violations by focusing on companies that put workers in danger.

OSHA has placed emphasis on criminal enforcement of workplace safety violations recently by referring more cases to the Department of Justice and U.S. Attorneys offices for criminal prosecution. They referred or assisted with the criminal prosecution of 27 cases in fiscal year 2014—the highest ever in OSHA history.

What can an employer do to avoid the double team? They first need a strong offense by recognizing that under the OSHA Act, they are responsible for providing a safe and healthful workplace. Second, they must know that OSHA’s mission is to assure safe and healthful workplaces by setting and enforcing standards. They also provide training, outreach, education and assistance. OSHA inspections can be conducted without advance notice, on-site or by phone by highly trained compliance officers. Their priorities are imminent danger; catastrophes and fatalities; worker complaints; targeted inspections due to high injury or illness rates; and severe violators as well as follow-up inspections.

One of the errors many employers make is waiting too long to put an effective program in place. They risk a huge fine, being placed on the Severe Violators Enforcement list, or even jail. Before OSHA shows up, companies need to establish good safety and health programs with four essential elements:

  • Management Commitments and Employee Involvement. The manager or management team must lead the way by setting policy, assigning and supporting responsibility, setting an example and involving employees.
  • Worksite Analysis. The worksite is continually analyzed to identify all existing and potential hazards.
  • Hazard Prevention and Control. Methods to prevent or control existing or potential hazards are put in place and maintained.
  • Training for Employees, Supervisors and Managers. Managers, supervisors, and employees are trained to understand and deal with worksite hazards.

“Every worker has the right to come home safely. While most employers try to do the right thing, we know that strong sanctions are the best tool to ensure that low road employers comply with the law and protect workers lives,” said Assistant Secretary for Occupational Safety and Health Dr. David Michaels. “More frequent and effective prosecution of these crimes will send a strong message to those employers who fail to provide a safe workplace for their employees. We look forward to working with the Department of Justice to enforce these life-saving rules when employers violate workplace safety, workers’ health and environmental regulations.”

That’s why it is important to have a living, targeted safety program, versus one copied from another employer or one quickly downloaded from a website. OSHA inspectors can quickly determine if a program is real or just a binder on a shelf.

Given the formal partnership with OSHA, the Justice Department’s renewed focus on prosecuting individuals, company executives, managers, and supervisors for workplace safety violations, organizations should note the enhanced risks, and implement measures to stay in the clear and keep their workers safe.

New York City Mandates Bathroom Access Consistent with Gender Identity

transgender bathroom accessThis week, New York City Mayor Bill de Blasio signed an executive order requiring city agencies to ensure all employees and members of the public can use the restrooms or locker rooms consistent with their gender identity, protecting transgender and gender non-conforming individuals from discrimination in public facilities.

“Every New Yorker should feel safe and welcome in our city—and this starts with our city buildings,” de Blasio said. “Access to bathrooms and other single-sex facilities is a fundamental human right that should not be restricted or denied to anyone. New York City is proud to enforce one of the strongest human rights laws in the country, which protects the rights of transgender and gender non-conforming individuals to live freely and with respect.”

Under the new measure, effective immediately, individuals will not have to provide identification or other proof in order to access bathrooms at any city-owned building, including city offices, public parks, playgrounds, pools, recreation centers and certain museums. It does not require agencies to build single-stall restrooms or locker rooms, though as OSHA noted over the summer in its guidelines on provisions for transgender employees, access to single-occupancy gender-neutral facilities is a safe, easy way to ensure compliance with workplace safety and nondiscrimination policies.

Ensuring a safe and compliant workplace for transgender employees is an increasingly urgent concern for risk managers of public entities and private enterprise alike. The OSHA guidelines, executive orders issued by President Barack Obama, and other emerging guidance from labor-related agencies make clear that federal and state governments are issuing more protections for transgender individuals, and the enforcement actions and reputational damage pose significant risk.

As I reported in the September issue of Risk Management, the president’s April executive order banned federal contractors who do more than $10,000 a year in federal business from discriminating on the basis of sexual orientation or gender identity. Such federal contractors employ more than 20% of the American workforce—28 million workers. The Office of Personnel Management has issued a comprehensive guide for these entities to best ensure that they are compliant and treating all employees with dignity and respect while preventing discrimination in the workplace. OPM also called for all federal agencies to review their anti-discrimination policies as well. In addition to restroom access, other issues addressed—and likely to face increasing scrutiny—include employment practices such as hiring and promotion, and the consistent use of preferred pronouns, the subject of a recent EEOC ruling against the Department of the Army.

“One of the encouraging things we’re seeing is that people are not waiting for the laws to change,” said Victoria Nolan, risk and benefits manager at Clean Water Services, who draws upon both her professional background and personal experience to offer private consulting services on transgender and diversity issues in the workplace. “There are companies that are being proactive. In some cases, for example, companies that are functioning in multiple states realize that it is extremely difficult to have a variety of offices and just comply with state law, so they are starting to look at the probable end results and move in that direction now.”

While many issues regarding transgender rights continue to spark controversy in legislatures across the country, almost all of the nation’s 20 largest cities have state or local laws allowing transgender people to use bathrooms corresponding to their gender identity. As CBS reported, Houston voters debated—though ultimately defeated—an ordinance that would have established nondiscrimination protections for gay and transgender people, while just last week, South Dakota’s governor vetoed a bill that would have made the state the first in the U.S. to approve a law requiring transgender students to use bathrooms and locker rooms that match their sex at birth rather than their gender identification.

Following our previous coverage, “Developing a Strategy for Transgender Workers,” there will also be a hot topic session of the same name at the upcoming RIMS Annual Conference and Exhibition in San Diego. Led by Victoria Nolan and employment attorney Liani Reeves, the session will take place on Monday, April 11.