Originally published in Electrical Apparatus Magazine.
If you’re the owner of a business involving physical labor in any way, you are responsible - legally and otherwise - for the well-being and safety of your employees while they’re in the workplace. OSHA regulations exist to ensure that these responsibilities are met, no matter what industry you’re in. Being found in violation of them usually means, at the bare minimum, getting slapped with a hefty fine. It’s important to comply with OSHA’s standards, but sometimes - especially when the Association updates its rules - this can be easier said than done.
How and why OSHA inspections are carried out
I spoke to an OSHA representative to find out how and why OSHA metes out violations, and how employers can best avoid them. According to the OSHA rep, there are a lot of things that can prompt an investigation from the Association. One of them is what they call an “imminent danger situation,” or an imminent plight of some sort that could likely result in serious injury or death. For example, say you’re a plant manager and it's summer. Your plant’s AC is broken, causing the plant to heat up to extremely high temperatures, potentially resulting in employees suffering a heat stroke at work - that’s an example of “imminent danger.” These circumstances, which can range from environmental hazards to active shooter situations (yes, OSHA expects you to have a safety plan and provide employee training for those, too), take the highest priority, which is probably why the agency keeps the definitions of such cases vague and broad - they don’t want a new condition that has not previously been widely-encountered to be ruled out if it can potentially cause death. Inspections can also be prompted by a worker complaint, a referral from another agency, or a follow-up inspection from a previously inspected site. Inspections can also be targeted - that means that OSHA can choose to inspect individual workplaces, or companies belonging to specific industries considered to be “high-hazard,” or that have experienced high rates of injuries and illnesses.
Inspections are carried out by OSHA representatives who are trained to know OSHA’s current rules like the back of their hands. There are four qualities of any violation, according to OSHA: first, an applicable standard - there has to be a rule saying that you can or cannot do something in a given situation. Second, the existence of a hazard - in the occurrence being assessed, there has to be something provably dangerous about the conditions or process of doing a specific job. Third, there’s employee exposure to a hazard, and fourth, the employer’s knowledge of that exposure.
A violation is considered “serious” if there is a “substantial probability that death or serious physical harm could result from a condition” of the workplace. An employee can be around something dangerous as long as it’s safely isolated from them and has the correct safety equipment to work around the hazard. The employer must also be reasonably aware of the hazard and the rules applicable to it and must have taken steps to mitigate the potential risk to the employee as defined by OSHA’s rules. If they chose to disregard the rules or allow their employees to ignore the hazard one or more times, things escalate from “serious” to “willful-serious,” a much more dismal offense legally, fiscally, and ethically. If a violation that is classified as “willful” causes a worker fatality or something similarly dire, it can even lead to a referral to the Department of Justice and criminal prosecution on the part of anyone involved in causing the offense.
When determining the penalty of a company’s offense, OSHA considers a few factors: the “gravity” of the violation, the size of the business in question, the “good faith” of the employer, and the company’s history of previous violations. OSHA defines “gravity” as the sum of two things: one, the severity of the injury that the violation caused or could have caused, and the likelihood that such an injury could have happened. The term “good faith” refers to the demonstrable effort the company made in order to prevent a violation, like company safety systems and protocols.
How and why rules are created
Since 1970, OSHA has been creating new rules in response to public petitions, based on its own initiative, or in response to recommendations from other government institutions. OSHA works with other government agencies like the National Institute for Occupational Safety and Health (NIOSH), which provides health and workplace safety research that OSHA uses to identify safety and health issues, as well as potential solutions to those issues. OSHA also frequently collaborates with the Environmental Protection Agency (EPA), Consumer Product Safety Commission (CPSC), Department of Transportation (DOT), Department of Defense (DOD), and Department of Energy (DOE).
No matter the “why” for creating new rules, OSHA’s approach to creating them is never arbitrary. First, the agency researches the problem by gathering data to figure out the parameters of the problem. Next, professional data analysts look at the information gathered by the researchers and assess the details of the problem...how widespread it is, what the risks are as defined by existing data, and so on. Then, the agency releases an official Request for Information, an Advance Notice of Proposed Rulemaking, and holds stakeholder meetings, which are generally open to the public, in order to gather input from people who might be affected by the new rule. OSHA then comes up with both regulatory and non-regulatory ways to solve the problem and publishes them in a Notice of Proposed Rulemaking so that members of the public can make suggestions before the final version of the rule is published and made law.
Any new rule that OSHA creates must also abide by existing laws like the Regulatory Flexibility Act, a law signed by President Jimmy Carter in 1980 that says that any government agency creating new regulations must strive to mitigate the negative effects those regulations have on small businesses, or the Improving Regulation and Regulatory Review, a similar executive order signed into law in 2011 by President Barack Obama. In May 2019, OSHA published a document online entitled, Standards Improvement Project--Phase IV; Final Rule, which was a comprehensive explanation of how OSHA plans to update older policies to make them more relevant for technology that is more widely used today. One of the major things covered in the document is the new minimum performance requirements for roll-over protective structures in rubber-tired, self-propelled scrapers. The document includes an analysis of how the new rules fit into the Regulatory Flexibility Act.
As for how OSHA determines that a business or individual should be penalized, the lines are not clear-cut, but dependent on tons of factors that may vary depending on the situation, the business, and other things that might be harder to predict, yet may nonetheless affect the conditions around the violation, and thus OSHA’s final judgment. The framing installation firm South Georgia Framers, for instance, was fined $33,000 in 2016 for one willful violation and three serious violations because the guardrails that were installed for employees working over nine feet off the ground at a job site were deemed inadequate protection; other safety structures such as midrails or screens, which are mandated by OSHA given the specific conditions in which the employees were working, were either structurally inadequate or completely absent from the job site.
A comprehensive list of the factors OSHA uses to consider the nature of the appropriate punishment can be found in OSHA’s Field Operations Manual (FOM) under Chapter 6, Section III, which is available to the public on OSHA’s official website (the URL is www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf).
Keeping up to date
It is technically the legal obligation of business owners to stay up-to-date on new rules as published by OSHA, but it can sometimes be difficult to stay abreast of these updates unless you go a little out of your way. If you can’t make a stakeholder meeting, new rules end up in the Federal Register, which is a publicly-available database, as soon as they are proposed or finalized (you can go to www.federalregister.gov, search OSHA, and click “Occupational Safety and Health Administration” on the bottom left, or just Google “Federal Register OSHA”). OSHA always issues a press release about proposed and final rules as well as publishing such news in its newsletter, called QuickTakes, as well as via the agency’s social media platforms (Facebook, Twitter, LinkedIn).
When in doubt, always look it up. OSHA’s rules are publicly available, and the agency can be contacted by phone at 800-321-6742, or by email. You can visit www.osha.gov for more information.