Knothead Safety

Local Company Takes on OSHA and Wins

In an earlier article in this publication I wrote about OSHA’s new theory of issuing multiple citations, offering to settle them down for little or no fine, just so they would have a record with a company so any repeat violations might now be subject to significantly higher penalties: Business Owners Beware of OSHA’s new tactic, Nevada Business Weekly January 23, 2012.

In that article I referenced a client of mine that I had been negotiating on behalf of with OSHA. That customer was Victory Woodworks in Sparks. Victory had a project in Las Vegas that they had been working on that was nearing completion. OSHA had come to the jobsite to conduct an inspection. No one from Victory had been working at the site that week, yet the OSHA inspector saw their gang box and some tools chained to it, and told the general contractor that he wanted to inspect their tools.

OSHA Strengthens Fall Protection Rules and Outreach Training Guidelines

It has been a busy spring for OSHA.  In addition to defending its mission to a skeptical Congress, OSHA has been working on implementing (or rescinding) alternative residential fall protection rules that have been in place since 1999; and has just issued new rules revamping the Outreach training program.  Both of these initiatives have an impact on construction contractors.

Residential contractors and roofers have, since 1999, enjoyed an exception to the conventional fall protection rules that have allowed them to use alternative fall protection, including slide guards and safety monitoring systems without the need for a formal, written fall protection plan.  Effective June 16, 2011, the 1999 directive that allowed those practices is being rescinded and contractors will now have to follow the more stringent conventional fall protection rules.  In April the 7th Circuit Court of Appeals upheld the June Implementation of the new OSHA directive after a challenge by the National Roofing Contractors Association.

Business Owners Beware:  OSHA’s new tactic

Unable to get Congress to pass its onerous Protecting American Workers Act (PAWA) (which I opined about in this publication in November 8, 2010 While Congress Considers Tightening the Law Even More), that would have significantly raised the penalties that OSHA could levy on employers; the Obama administration is using other, more subtle, anti-business measures to accomplish their goals.

There are basically four types of OSHA violations:  other than serious (OTS), serious, willful and repeat.  While penalty amounts for OTS and serious are capped at $7,000, willful and repeat violations are capped at $70,000.  OSHA has recently begun conducting more and more inspections, giving its Compliance Safety and Health Officers (CSHO’s) orders to focus on issuing as many serious and OTS violations as possible with each inspection.  Many times, the initial citations are listed as “serious” but they are often willing to “reduce” those to OTS in the hopes of getting the business owners to settle the claims without litigation, thinking that an OTS violation isn’t too bad.  Don’t fall for this.

Employers Can Best Thwart Oppressive Safety Regulations

On August 26 the Bureau of Labor Statistics released the number of job-related fatalities for 2010. The BLS report said 4,547 workers died from occupational injuries in 2010 compared with 4,551 in 2009. In an economy where many of the most dangerous industries are experiencing record unemployment, the fact that the fatalities in American workplaces remain almost flat is disturbing.

I am a big promoter of a decrease in government intrusion in private enterprise. There is little doubt that when a situation gets to the point where the government determines that intervention is necessary it will always be over-burdensome on businesses. The most disturbing fact is that most of the time businesses are in the best position to address situations before the government steps in and regulates but simply fail to do so.

Right when you thought it couldn’t get any worse . . . here comes PAWA!

In an earlier article (NNBW January 11, 2010) I opined about Federal OSHA’s review of the Nevada state-run OSHA program.  In that article, I stated that in the report the “focus on penalty increases consumed a great portion” of OSHA’s criticism of our state-run program.  My conclusion was that OSHA seemed “headed more toward a citation-based policy of disincentives” rather than taking a partnership approach with businesses to make workplaces safer as I believe would be more effective in protecting our workforce.

Consider the following statistics.  Since the passage of the OSH Act in 1970, workplace deaths have been reduced by over 64% in large part due to the voluntary compliance by American business of the OSH Acts regulations and by employees and employers working together to strengthen workplace safety.  Since 2001 alone, fatalities in American workplaces are down 14%, and illnesses and accidents are down 21%.  Despite these encouraging statistics, we still have work to do improving safety in our workplaces; no one’s arguing that. 

Unfortunately, however, as my prior article pointed out, President Obama’s appointment of OSHA director Dr. David Michaels, a university professor associated with a public health group funded by plaintiff’s attorneys, said his agenda “begins with increased enforcement . . . and a push for penalty increases.”  And now, the democratically controlled Congress seems to once again be falling in lock-step with that agenda.

Protecting American Employers from the Protecting American Workers Act.

In an earlier article (NNBW January 11, 2010) I opined about Federal OSHA’s review of the Nevada state-run OSHA program.  In that article, I stated that in the report the “focus on penalty increases consumed a great portion” of OSHA’s criticism of our state-run program.  My conclusion was that OSHA seemed “headed more toward a citation-based policy of disincentives” rather than taking a partnership approach with businesses to make workplaces safer as I believe would be more effective in protecting our workforce.

The Protecting America’s Workers Act (PAWA) in House bill HR 2067, was sponsored earlier this spring by Rep. Lynn Woosley (D, CA), and co-sponsored by 65 other House Democrats (but not a single House Republican), and proposed increasing civil and criminal penalties for violation of the OSH Act.  However, in a package of modifications circulated by the House Subcommittee on March 9, 2010 even more significant civil and criminal penalty increases were proposed upon businesses. 

In an effort to now get that legislation passed, the House has now attached portions of this bill to the Robert C. Byrd Miner Safety and Health Act of 2010, making a vote on the House floor now certain.  This legislation is not good for Nevada small businesses.

Employer's Beware – OSHA's new rules to conduct an inspection at YOUR workplace

In the past, OSHA has conducted inspections under four priorities: Where they have notice of a condition that creates a situation that is an immediate danger to life or health; there has been a death or catastrophic injury resulting in the hospitalization of three or more employees; there has been a registered complain about a safety hazard; or, for regularly scheduled inspections of "high hazard" industries where OSHA has determined that there have been a significant number of accidents, injuries or deaths.

In July of 2009, OSHA issued a Site Specific Targeting (SST) plan for inspections of Injury and Illness reporting logs of thousands of companies in the United States, primarily in the manufacturing industry. This announced a National Emphasis Plan (NEP) to review companies Injury and Illness logs under the OSHA recordkeeping standards. All employers with more than 10 employees are required under the OSHA standards, to maintain written Injury and Illness reports and keep them available for OSHA inspection.

THE NEW OSHA CONSTRUCTION REQUIREMENTS: WHAT THEY MEAN TO YOU

The Nevada legislature passed AB-148 that takes effect January 1, 2009 invoking new OSHA training requirements.  The new Nevada law, the first state mandate of its kind for construction workers and supervisors, is being heralded as a model for other states to follow.  What will it mean for Nevada companies?

In a nutshell, the new law requires certain OSHA training for any “construction worker” performing work at any “construction site” in Nevada after January 1, 2010.  To understand the new law, you must understand the definitions contained within the law.

A “construction worker” means “a person who actually performs physical work at a construction site: (a) that results in the construction, alteration or destruction involved in the construction project, including without limitation, painting and decorating; or (b) Who supervises any person engaged in work described in paragraph (a).”

A “construction site” means “any location at which construction work is being commenced or is in progress.”