Regulatory Watch

Experts: OSHA Wants to Shame Employers Into Compliance

Some say OSHA is making a concerted effort to embarrass employers into creating safer workplaces.
By: | July 20, 2015

Is OSHA engaged in a conspiracy against employers? Possibly, say workers’ comp experts.

Recent actions by the agency combined with proposed changes to reporting requirements and a controversial white paper have led some to believe there is a concerted effort to at least shame employers into creating safer workplaces. During a recent webinar, two experts warned of stepped up enforcement actions and advised employers to make sure they are prepared.

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Assistant Secretary of Labor for Occupational Safety and Health David Michaels believes some employers allow hazards to exist in their workplaces “because they recognize that it is not in their financial interest to abate serious hazards, especially in the short term.” The language was included in a statement Michaels released in July 2010, soon after his appointment. He noted that the likelihood of an inspection “is low” and the fines are “inconsequential.”

“When David Michaels was appointed (assistant secretary of labor for occupational safety and health) in July 2010 he issued a press release, and in that he essentially said OSHA needs to make a ‘fundamental transformation’ in the way it addresses workplace hazards,” said Mark Sullivan, senior consultant at Aon Risk Solutions.

Michaels’ message wasn’t subtle. “In some cases, ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life-threatening hazards and we will not hesitate to publicize the names of violators, especially when their actions place the safety and health of workers in danger,” he wrote. “To do this, we will issue more hard-hitting press releases that explain more clearly why we cited a specific employer.”

Sullivan and attorney Melissa A. Bailey of Ogletree, Deakins, Nash, Smoak & Stewart PC discussed the agency’s stepped up enforcement, publicity surrounding that enforcement, and a recent controversial white paper issued by the agency during a webinar. How Will OSHA Changes Impact Your Workers’ Compensation Program? was part of the Out Front Ideas with Kimberly and Mark educational series sponsored by Sedgwick and Safety National.

White Paper

“As someone who’s done OSHA work for over 15 years, I follow policies carefully,” Bailey said. “I don’t recall a situation where this kind of white paper [was issued and] not related to a specific hazard. To me this is pretty unusual.”

The white paper, issued earlier this year, linked workplace injuries to income inequality. It coincided with the release of a series of reports from Propublica and NPR that were critical of the workers’ comp system.

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“I haven’t seen this kind of policy paper from OSHA before on a global issue,” Bailey continued. “It matches up with the general mood of OSHA and the Department of Labor: ‘Let’s look at global issues and really advocate for policies we want.'”

According to the speakers, the white paper is further evidence of OSHA’s determination to force employers to comply with agency regulations in the face of budgetary cutbacks over the last several years.

Electronic Reporting Proposal

In addition, the speakers noted that OSHA plans to implement a new reporting requirement soon. While not changing what employers are required to track, the proposed rule would mandate the electronic submission of injury and illness information on a quarterly basis for establishments with more than 250 employees, and annual summaries of work-related injuries and illnesses for establishments with at least 20 employers in certain high-hazard industries.

The agency said it will eventually post the data online although the identification of the employer and employees will be redacted. How the agency would maintain the confidentially of employers on the public database remains to be seen, the speakers said.

“In some cases, ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life-threatening hazards and we will not hesitate to publicize the names of violators, especially when their actions place the safety and health of workers in danger.” —Assistant Secretary of Labor for Occupational Safety and Health David Michaels

“This is really a very major change in the recordkeeping system,” Sullivan said. “Under the current method, OSHA log information remains in-house unless OSHA inspects [the company] or requests it as part of a survey. This would modify the law to expand OSHA’s authority to collect that data.”

Sullivan noted one concern is that the proposal may drive companies to focus more on post-loss lagging indicators rather than leading indicators. “Leading indicators are pre-incident measurements,” he said. “Lagging indicators are collected after the incident and include traditional numbers, the rate or cost of injuries. They don’t by themselves reflect the effectiveness of safety management.  Leading indicators include steps to prevent injuries such as training, audits, incident investigations, and corrective actions.”

OSHA has indicated the proposed rule would improve workplace safety and health through better tracking. But the speakers believe there are other reasons.

“This would be a tremendous benefit for union organizers,” Bailey said. “The message could be to an unorganized facility, ‘the facility that voted us in last year has had far fewer accidents than your facility, so vote union.'”

The posting of the information could also present problems for contractors.

“The use of injury rates has really been a prevalent practice for some time as part of the selection criteria to select safe contractors, especially in the construction industry,” Sullivan said. “In my experience, some of these ignore leading indicators and can cause an employer to be rejected on injury rates alone. That can result in severe hardship if they lose large contracts.”

Preparation Is Key

Employers can protect themselves against unwanted OSHA citations by establishing basic safety management. Sullivan noted several steps outlined in a standard from the American National Standards Institute:

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  • Management commitment to show senior management provides direction and policy and resources for a company to have and execute a safety process.
  • Employee involvement.
  • Planning, including ongoing hazard assessment and prioritizing.
  • Implementation and operation, including the design and review of emergency procedures, safety training.
Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]