– By Sharon Thatcher, Rural Builder –
A few things to know about the regulatory agency that monitors workplace safety.
Even companies with the best safety practices ‘fear’ a visit from OSHA. With thousands of pages of regulations developed for the protection of workers, the concerns are justifiable. Yet, knowledge is power and knowing something about this federal regulatory agency – which seeks to grow compliance – might help you understand your own role in worker safety a little bit more.
First, if you think you’re immune from OSHA visits because your business is small and rural, you might want to think again. OSHA rules are ever changing, and more and more the exceptions are becoming the rule.
Attorney Gary Auman of Dunlevey Mahan & Furry, Dayton, Ohio, knows more than a thing or two about OSHA and the construction profession. Since 1976 he has been working OSHA cases and now provides legal counsel to the National Frame Building Association. He routinely writes and speaks about safety issues to audiences of builders.
According to Auman, 10 years ago probably half of all NFBA members didn’t think OSHA applied to them or that the safety of their employees was their responsibility. He admits that at one time that was the case. “Post frame has enjoyed some immunity from a lot of inspections because they are rural,” he says.
But construction is largely a visible occupation, more so than a fixed-site factory operation located behind gates and walls. Many post-frame builders have become more commercially oriented; thus, their territory has expanded from the back roads to the main roads, making them even more visible.
As well, OSHA is learning the market. “OSHA is becoming much more familiar with the industry in regards to the fact that post frame is out there and what [post-frame builders] do,” Auman says. “OSHA is doing a little more cruising around off the interstates and a little more driving in semi-rural areas.”
OSHA has also grown more teeth. “It has only become as intense as it has the last 15-20 years,” Auman explains of the agency’s regulatory powers. “From 1976 to 1985 or so OSHA was considered an annoyance. OSHA updated its standards and procedures early in the 1980s and increased the penalty structure substantially. It used to be, in a serious violation, the maximum fine was $1,000, and that wasn’t anything anyone got concerned about. A repeat violation was a maximum fine of $7,000. Now $7,000 is $70,000.”
When the current Assistant Secretary of Labor for Occupational Safety and Health Administration, Dr. David Michaels, arrived in his position late in 2009, the average fine for a serious violation was $600. Michaels would like to increase the average fine to $4,000. To help with enforcement, part of a bill pending in Congress (albeit not getting much traction), calls for more OSHA staffing to get the job done.
Also under consideration is adopting a law on the federal level that is already law in the State of Washington. “The State of Washington on July 1 implemented a guideline that says: when you get cited, if you challenge the citation, you can no longer wait to fix the problem until your challenge is adjudicated,” Auman explains.
In other words, even if you file a notice of contest because you believe there is no problem or you did nothing wrong, in the State of Washington you still need to fix the alleged problem while your case is under review.
If you still think you are safe from OSHA scrutiny, consider this: “There’s been more OSHA cases in the news and more and more employees are becoming aware of OSHA and recognizing the fact that their employers owe them a duty to provide them a safe workplace,” Auman says. “I’m seeing a huge increase in complaints where an employee, terminated by his employer, picks up a phone and calls OSHA and says ‘this guy is working on the ABC farm on county road XX and he’s not using fall protection.’”
Recently OSHA announced that it is going to increase its scrutiny of situations in which an employer’s programs may be denying its employees their rights to complain about safety or to report an on-the-job injury.
But if you think you can trust your employees, look out for the neighbors.
“I’ve had cases where neighbors have turned in a client,” Auman relates. “I recently had a case where a next door neighbor called OSHA and said, ‘these guys are putting a roof on this building and they’re not wearing any fall protection, I think you should do something about it.’”
Probably the most visible in the business are roofing contractors. “They’re working on the highest point on any building, they’re very visible, they can be seen from a long distance away, they are prime targets,” Auman points out.
Auman says post-frame builders are improving on safety but he still gives them a “C to C-minus” overall. “I think the larger post frame contractors I talk to are in compliance,” Auman says. “Most of them take safety very seriously. I think the smaller, rural contractors, many of them have an attitude of ‘I’m concerned about safety but I’m not going out of my way to do some bureaucratic fixes just because somebody who doesn’t know what I do, or how I do it, said I should.’”
It is not because small contractors don’t value their employees’ safety, Auman explains.
“The biggest thing in construction, and I find this true in manufacturing, nobody wants to discipline an employee. They’re all concerned they’re going to have to take disciplinary action against one of their best employees.”
Also at issue is the perception that safety impedes progress. “I think post-frame contractors are finding this more and more as they get into commercial work,” Auman says. “I don’t think ag work was ever an issue, because farmers aren’t going to keep their feet to the fire as much as someone whose trying to start a business – open a car dealership or a little restaurant – and they set a deadline, or say ‘I’d like to have this done by a certain date.’ If you’re not finished by that date, then there are penalty clauses.”
Auman has answers for such arguments. “It’s all in how you negotiate the contract when you sit down to sign it,” he contends about deadlines. “You want to make sure you are not signing a contract you can’t live with from a timing standpoint. You have to have that extra time in there for safety if you feel you are going to need it.”
As for the time factor, “I try to point out that most people find when they operate safely, their employees move more quickly than when they’re looking over their shoulder worrying about getting caught violating a safety rule. There are more than a few people out there who spend more time trying to find ways NOT comply with safety than they would spend if they actually did what they were supposed to.”
Before viewing OSHA as the big bad wolf, be reminded that keeping people safe and alive on the job is its primary objective. All the aggravation of safety training and enforcement is worth it if the same valued employee you hated to discipline is alive and healthy because of your persistence. One bad move can cost thousands of dollars in increased workers’ compensation premiums, legal expenses, lost business and lots of heartbreak.
Also know that the construction industry doesn’t wear a bullseye, it’s just a part of the mix. “They don’t categorize industries, they categorize the kinds of safety issues they’re most concerned about,” Auman explains.
Editor’s Note: Does your company have an effective way of motivating employees to work safely? If so, let us know and we’ll pass the ideas on to others in a future article. Email firstname.lastname@example.org.
OSHA at a glance
• In the eyes of the government, you are 100 percent responsible for your employees’ safety 100 percent of the time. “It’s like you are the parent and they are the child,” says attorney Gary Auman.
• The actual structure of OSHA consists of the federal level, regional offices and area offices. Under each area director are multiple compliance officers who perform site visits and issue citations. A pending budget in Congress asks for an increase in compliance staff.
• Until December 2010 post-frame contractors were under the same interim guidelines as residential fall protection. Those guidelines have been removed. As a result, for construction 6 feet above ground level and beyond, builders must have 100 percent fall protection 100 percent of the time. As Auman explains: “… contractors, unless they’re doing roofing on a flat roof (meaning less than a 4:12 slope), they have to have their people using a harness, life line and lanyard, safety nets or guardrails. Those are the only options they have.”
• Fall protection techniques and equipment must be OSHA compliant. If you make an attempt at safety but it isn’t correct, it doesn’t count. “You can say you were operating in good faith but OSHA is going to say, ‘no, you recognize you need to have fall protection but it’s your responsibility to delve beyond the surface and to look at the other requirements,” Auman notes.
• Willful violations are particularly frowned upon, and expensive, so don’t be cavalier when OSHA comes calling. Fines start at $7,000 and can go up to $70,000 for employers who know what they need to do to protect their employees, know that their employees are exposed to a hazard, but refuse to comply with the standards “If there’s a fatality,” Auman says, “and it’s a direct result of a willful violation, then the employer or an officer of the corporation could find themselves being charged criminally by the Department of Justice and could be looking at a six-month prison sentence.” The current bill pending in Congress would increase the potential prison time to 10 years, and has the potential for significantly increasing the penalty structure in general.
• Fines for a serious OSHA violation, both state and federal jurisdictions, range from $0-$7,000. If OSHA returns and finds a repeat violation, general rule is that the penalty will double or more, so if you were fined $5,000 the first time, you would be fined a minimum of $10,000 the second time. There is no definition for this rule, however. There is also no definition regarding the length of time between violations that you can be penalized for a repeat violation. General rule is four years, but OSHA has successfully challenged time limits.