– By Gary Auman, NFBA Legal Counsel –
On November 2, 2015, President Obama signed a broad-based budget bill. Many people may have believed that this bill was restricted to funding the federal government for 2016, but buried in the bill was language that requires the Occupational Safety and Health Administration to raise fines 82 percent for all safety violations by August 1, 2016. This requirement will take the cost of the maximum possible penalty for a serious or other than serious citation from $7,000 to approximately $12,740. The maximum available penalty for a repeat or willful citation will increase from $70,000 to approximately $127,400. If you have little concern about safe work practices because they “cost too much,” perhaps this new penalty structure will grab your attention. The same bill contained a requirement that OSHA fines increase annually in concert with the consumer price index. So OSHA fines are no longer static; from this point forward they will continue to rise. With OSHA’s new penalty structure, the potential for losing all of your profit on several buildings as the result of one citation with multiple violations has become a real possibility.
But the possibility of fines should not be the driving force behind your commitment to safety. You should be dedicated to providing your workforce with the safest working environment possible.
Does your safety program need to be in writing? Yes. The OSHA standard—29 CFR 1926.20(b)(1)—requires a program, and even though this section does not specify a written program, being able to produce a written program is the best way to demonstrate that you are in compliance. More important, a written program captures the requirements you have established for your employees that are directed at their safety. When you train your employees in your program and give each employee a copy, it places some burden on them to comply with your rules; they cannot deny that you have not covered a given situation. It also establishes your safety expectations for them and the fact that you consider safety an important part of working for your company.
But the title of this article refers to a solid safety program. This title was intentional: not just any safety program will do. You should not use a fill-in-the blank or off-the-shelf safety program from the Internet. You should have a safety program that is designed for your company. Many years ago NFBA provided its members with a disc that contained a fill-in-the-blank safety program. I was never comfortable with this approach. Over the years my concerns about these types of programs have increased. Since I began grading safety programs for four different construction industry trade associations about 10 years ago, I have seen the best and the worst in safety programs. It is very easy to tell when a portion of a safety program has been copied from the Internet rather than designed for a particular company or situation. The program sections copied from the Internet or borrowed from someone else’s safety program and tweaked are immediately identifiable. They do not fit with the other sections of the safety program, they clearly are designed for a different industry or they spend too much space emphasizing nonsubstantive material rather than setting rules to govern the conduct of employees and supervisors.
Any safety program you develop must be your program, not someone else’s program. It must be tailored to your workforce and apply to the types of work your company does. I do not mean that you should never consider safety programs found on the Internet or received from another company or from NFBA. I am saying that you should use these as a guide in developing your own program for your company.
The crucial points are these. A solid safety program does not contain only rules; it also contains procedures and guidelines for implementation. The program must be in writing, it must be effectively communicated to all employees, and it must be administered by the employer.
To say that you have a program but that it is not in writing will not be acceptable in 95 percent of cases. And although compliance with the law is not the most important reason to have a written program, it should be a driving force behind your program. Without a written program, you give up one of the defenses for your company in the case of an OSHA citation: the defense of unpreventable employee (or supervisor) misconduct. As the dollar amount of the penalties increases, so does the importance of documenting your safety program. To make this defense available to you, you must be able to show OSHA that you have a safety program and rules that prohibit the conduct observed by the compliance officer and that you have communicated that rule to the employees. A verbal statement that you have a rule and that you did communicate it will not be sufficient.
At a minimum a solid safety program includes the following elements:
- a statement of the company’s policy concerning job safety
- the company’s rules for safety compliance and safe worksites, including requirements for employee training and the expectations for employees regarding each rule
- a section on employee safety training, including safety orientation training, weekly tool box talks, daily safety job briefings and any other safety training the company provides for employees
- the company’s safety enforcement program, including the elements of a progressive discipline program
- the company’s program for a drug-free workplace.
- a procedure for performing job-site safety audits or job-hazard analyses prior to the start of any job
- a statement regarding hazard assessments and requirements for personal protective equipment
- the program for site audits for compliance with the safety program, including safety compliance in any warehouse or shop facilities owned or operated by the company
- a statement regarding the treatment of temporary employees regarding safety compliance and enforcement
- a statement regarding interactions with employees of subcontractors who may be performing work on the job site.
- a policy statement concerning who may represent the employer during any OSHA compliance inspection
- a statement encouraging employees to bring safety concerns to their supervisor or other management representative and a further promise that no one reporting a safety concern will be retaliated against in any way.
Although this list may appear to be daunting, fulfilling its terms is not as complicated as it may seem. However, some work and a commitment are necessary. My work reviewing components of safety programs for four trade associations has given me the opportunity to help contractors in the construction industry—contractors just like the readers of Frame Building News. In reviewing these programs with a group of other safety professionals, I have found only a small number that pass muster and attain the highest level. In the course of reviewing close to a thousand applications over the course of 10 years, we still have not awarded a perfect score.
This finding reminds us that all safety programs can use adjustments and can benefit from feedback; no matter how good they are, none is perfect. If you have not yet taken the opportunity to participate in NFBA’s Gail Miller Recognition Program for Excellence in Safety, I strongly encourage you to do so before the 2017 Frame Building Expo. Participating will give you the opportunity to obtain feedback from professionals who look at all applications in a blind review process and provide very detailed feedback and concrete suggestions for improvement. The feedback the applicants receive is entirely confidential. No one sees your score, and even the graders cannot associate the applications they review and grade with specific companies.
A program that follows the model suggested above and that is used and enforced every day will play a major role in protecting your employees and providing them a safe work environment, and it will demonstrate your compliance with both federal and state regulatory agencies. You must expand on each of these components with detail that applies to your company.
I call your attention especially to the third bulleted point above, which addresses effective employee training. A company’s training program has many aspects beyond the way the training is conducted. The first training opportunity is when a new employee is hired. To be sure that your employee receives all the necessary safety information in order to perform his or her job safely, do not assume that the employee was effectively trained during work for one or more post-frame contractors before coming to work for you. This is not the time for shortcuts! The safety orientation is the time to demonstrate to your new employees that you take safety seriously. Your safety orientation should address all components of your safety program, including enforcement. It is critical to let your new employees know that you will hold them accountable for compliance with all safety rules.
Orientation is best if presented “live” to your new employees, rather than on a DVD or through the reading of a safety manual. The best orientation is an interactive one in which the new employee actively participates.
In addition to all key components of your company’s safety program, these topics should be covered:
- fall protection
- hazard communication and hazard recognition
- requirements for personal protective equipment
- ladder safety
- scaffold safety
- prevention of heat-related illnesses
- cold-weather injuries and how to avoid them
- power tool safety
- safety enforcement
- requirements for a competent person
- distracted driving.
A key component of this orientation is training in hazard recognition, which is different from hazard communication. Hazard recognition involves training your employees to be aware of their surroundings at all times and to question any assignment that they believe might expose them to an unanticipated hazard. They should understand that when they observe a situation that concerns them from a safety perspective, they should immediately bring the concern to the attention of their supervisor and be guided by the supervisor’s direction.
It is very important that you have an idea of your employees’ comprehension of your safety program as they complete their orientation. To accomplish this, you should administer a comprehensive quiz to your employees. This quiz should be graded on a pass/fail basis, with a score of 70 percent required to pass. Any employee who cannot pass the quiz should not be permitted on any active worksite but be required to repeat the orientation, or at least the part that he or she failed, and to retake the test until a passing score is achieved.
In addition to orientation, your safety training program should include weekly tool-box talks on specific topics in some detail. These talks should be at the crew level and should be directed by your safety director, consultant, or whomever you have designated within your company to have responsibility for safety. Daily safety briefings are even better.
At the start of each workday, even before the rest of the crew arrives on site, the foreman or superintendent should walk the job site to identify any hazards to which his crew members may be exposed during the coming work day. After these potential hazards have been identified, he or she should brief the crew on what they should expect for the remainder of the work day and how to either avoid or protect themselves from the hazards. In addition to the daily safety briefings and the weekly tool-box talks, quarterly, semiannual or annual safety meetings with all employees are a good idea. These meetings may last half a day or longer and will allow you the opportunity to do refresher training and new detailed training beyond what you may have the ability or time to do in the field.
The preceding identifies the minimum components of a solid safety program. Stay tuned for a future Safety Update article on safety orientation.
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.