An interesting op-ed piece in the WashingtonExaminer this past week calls into question whether or not the Administration, specifically OSHA under current management, is going rogue with the General Duty Clause (the piece is provided below or linked here). The General Duty Clause in the OSH Act (Section 5(a)(1)) basically states that employers are required to provide its employees with workplace free of recognized hazards. In other words, it’s a catch-all provision which allows the agency to issue penalties for not addressing a hazard even if there is no Federal regulation which addresses that hazard. Typically, concensus standards (ie: industry and other types of standards such as NFPA, ANSI, etc) are applied in such a manner.
The issue is this: OSHA not only promulgates standards which become enforced with the “rule of law” so to speak, it also publishes Guidance documents to provide employers and workers with information about emerging safety and health issues. These guidance documents are not, by definition, required mandates to the employer. These can be thought of as ‘best practices’ or ‘should does’.
For example, in the Preventing Workplace Violence Directive mentioned in this op-ed, there is a disclaimer in the very opening of the guidance publication it references. It reads: “These guidelines are not a new standard or regulation. They are advisory in nature, informational in content and intended to help employers establish effective workplace violence prevention programs adapted to their specific worksites. The guidelines do not address issues related to patient care. They are performance-oriented, and how employers implement them will vary based on the site’s hazard analysis.”
So, in theory, guidance documents cannot be used as justification for an OSHA general duty violation under 5a1. I am not aware of any instances where they are used for enforcement actions. That said, if the guidance material references consensus standards, etc, OSHA can still utilize those embedded consensus standards as justification for a violation. This happens all the time through RAGAGEP (Recognized And Generally Accepted Good Engineering Practices) in the Process Safety Management standard 1910.119 enforcement cases. It can get a little confusing, I agree. But generally speaking, this is an area where employers may have greater footing than they otherwise might think they have if contesting a violation it feels is over-reaching.
Although I agree that the Agency might get a little over zealous in some isolated cases with this particular directive, I would be a little hard pressed to see it become a rampant issue. For one, the the enforcement directive cites other guidance materials — not industry or other consensus standards on dealing with the issue. Therefore, the Agency (presumably) will be leaning pretty heavily on the guidance document to make its case. That won’t be easy to do. Getting 5a1 violations to stick pretty hard is difficult enough a task as it is. Sure, OSHA can still try with this type of scenario in the op-ed…. But….
**** Op-Ed from WashingtonExaminer.com ****
OSHA is another Obama agency gone rogue
Op-Ed Contributor
Picture this scenario: One day, in a large hospital with thousands of patient visits per year, the unthinkable occurs — while a doctor explains unfortunate news to a patient’s family, a relative pulls a gun and mortally wounds the doctor.That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration investigator arrives to conduct an inspection.After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.As you may have guessed, the above inspection is not so hypothetical. On Sept. 8, OSHA issued a directive to its investigators regarding how to inspect — and cite — employers for instances of workplace violence.
If you’re wondering where to look up the federal law or regulation that tells employers how to avoid a citation for workplace violence, don’t bother. OSHA has issued this directive under the assumption that a vague clause of the Occupational Safety and Health Act gives OSHA the power to cite employers for something as specific and unpredictable as workplace violence.
Known as the “General Duty Clause,” this provision requires employers to keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.
Congress intended for this clause to be used only as a temporary measure, until OSHA could draft rules regarding specific hazards that had the agency had not yet addressed. It was not intended to be used as a means for OSHA to issue citations for anything under the sun.
Yet in the past several years, OSHA has used the General Duty Clause to cite companies for issues as varied as crowd control, heat stress, and even the use of killer whales in SeaWorld shows.
Now, OSHA seeks to take the General Duty Clause one step further, and to use it to hold employers liable for actions taken by people who are not their employees. This is troublesome for two reasons.
First, it is incredible to hold companies liable for the actions of the general public. By that standard, every time an unruly bar patron takes a swing at a bouncer, or every time a criminal holds up a convenience store, it’s the employer’s fault for placing employees in that situation.
Indeed, employees in the security industry by definition place themselves at risk of assault by the general public. What is to become of them?
Second, the directive provides employers no clue about what to do to avoid a citation. Will a grocery store or bank be liable if employees are shot during a robbery? OSHA’s answer to this question is an emphatic “maybe,” and depends in part on what measures a security expert may recommend to the employer. But employers should not have to hire an expert to find out what the law requires.
The General Duty Clause was intended to be caulk — to fill in the gaps where regulations did not apply to ensure that employers kept the workplace free of “recognized hazards.” OSHA, however, has shaped and cured the caulk into a cudgel, using it to cite employers for a multitude of conditions, including those beyond the employers’ control.
Congress should ensure that OSHA limits its use of the General Duty Clause to the original design of the Occupational Safety and Health Act and does not punish employers for acts beyond their control.
Read more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/10/osha-another-obama-agency-gone-rogue#ixzz1bWf3FSII
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Follow us on Facebook: www.facebook.com/prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety, Citation, OSHA Advisor.
House Ed/Workforce Subcommittee Holds OSHA Oversight Hearing Following Office of Inspector General Report
The Subcommittee on Workforce Protections recently held a hearing entitled: Is OSHA Undermining State Efforts to Promote Workplace Safety? The hearing stems from a critical OIG report released in March 2011 which asserted that the Agency has not defined what “as effective as Federal OSHA” means when it evaluated all of the 27 State Plan programs. The report further states that Federal OSHA has not evaluated the effectiveness of its own enforcement programs. The GAO has been requested to conduct such a review of the agency’s enforcement programs for effectiveness.
Representative Lynn Woolsey (D-CA) Announces Retirement (#OSHA)
The Ranking Member for the House Subcommittee which has jurisdiction over OSHA issues has announced that she will not seek re-election in 2012. Rep. Woolsey was an advocate for OSHA Reform. She introduced the Protecting Americas Workers Act (PAWA) bill in the previous and current Congress. Her retirement, coupled with the likely redistricting in Ohio where Rep. Kucinich is anticipated to lose his seat and other close races on both sides of the aisle, it is likely that this Subcommittee will experience significant “turnover”, particularly among longstanding members.
OSHA Proposes Changes to Reporting Rule (29 CFR 1910.39)
The current rule requires employers to report fatalities and injuries involving hospitalization of 3 or more employees to OSHA within 8 hours of the incident. The new proposed rule would require this reporting regardless of the number of employees hospitalized. Also, amputations will be have to be reported within 24 hours. Stakeholders are encouraged to submit comments on the proposal by September 30.
House Ed/Workforce Subcommittee Holds Hearing After IG Issues Report on DOL Financial Management
The House Subcommittee for Health, Employment, Labor, and Pensions (HELP) held a hearing on June 2 on the topic of the DOL IG report on financial mismanagement at the Department of Labor. The IG testified that multiple deficiencies were discovered by the independent auditor (KPMG) despite a previous 10 year period with no identified weaknesses in the financial statements. The significance of this hearing and report are anticipated to impact the budget debate and Department funding level for 2012.
New (OSHA) Law Passes in Washington State Which Mandates Hazard Abatement During Contest Period
The Governor of Washington recently signed a new law into effect which mandates that employers correct the hazards identified in a citation — even if it is being contested. The new law changes existing rules whereby employers had no obligation to abate the cited hazards until the case was resolved. Approximately 10% of the citations in WA are contested in comparison to the national average of 7-8%.
OSHA Unveils Webpage for I2P2 (Injury & Illness Prevention Programs)
The Agency unveiled its webpage for safety and health management programs to help employers develop or enhance their own programs in order to better protect their employees. It is also a communication tool for employers to remain updated on developments of the new rulemaking on I2P2. Although many large employers already have sophisticated safety management systems, it is important to note that small businesses often service these same employers and may not be as developed with effective safety and health systems.
OSHA Announces Susan Harwood Grants for Safety & Health Training
The Agency is soliciting applications under the Susan Harwood Training Grant Program through which a total of $4.7M is available to various types of nonprofit organizations. The grants are intended to fund training for workers and employers to recognize and address workplace hazards. The key topics include: crane safety, fall protection, Hazcom, and a few others.
AFL-CIO Releases Annual Workplace Safety Report (OSHA)
Every year, the AFL-CIO publishes a workplace safety report entitled “Death on the Job”. The robust report includes national as well as state-by-state statistics and analysis related to occupational injuries, illnesses, fatalities across a multitude of industries as well as trends. The report cites the accidents at Upper Big Branch (mining), Tesoro (refining), and Kleen Energy (power) as evidence that additional regulations and stronger enforcement are needed to protect workers.
Occupational Safety & Health Review Commission (OSHRC) Rules on Statute of Limitations for Recordkeeping
With the March 11th unanimous ruling from the OSHRC on a case dealing with ’statute of limitations’ on recordkeeping (RK) violations, OSHA can cite employers for certain RK violations that occurred years earlier despite the OSH Act provision which places a 6 month statute of limitations. The commission agreed with the Agency’s argument that the RK violations were “continuous” (ongoing) whereas the unsuccessfully asserted that these were “one time events”. Conversely, one violation which was arguably a “one time violation” from years earlier was vacated.
OSHA Budget for Remaining FY2011 Will Remain in Tact While FY2012 is Debated in Congress
On April 14, the Congress passed a Continuing Resolution (CR) to fund government operations through the remaining part of this current fiscal year. Although there is a reported $38 billion cut in FY11 Federal spending, OSHA’s budget will remain at $559 million. Dr Michaels testified in a House Appropriations subcommittee as part of the FY2012 budget debate over the Administration’s request for a $24M increase to $583M. Stakeholders should expect the $583M to be lowered.
OSHA Launches National Outreach Program to Protect Workers from Heat Stress Hazards
OSHA launched a national campaign to address the issues of heat stress as a lead-up to the Summer season. Although the focus will primarily be for employees who work mostly outdoors (migrant workers, construction, etc), it ought to be noted for other industries as well since even a short duration can expose the employee to a serious hazard.
OSHA Reopens Public Record on Musculoskeletal Disorders Reporting Column
The Agency has reopened the record for rulemaking on MSD reporting so that interested individuals and small businesses can submit comments on the issues raised during recent stakeholder conference calls. The recent conference calls and subsequent reopening of the record stems from criticism the Agency received last January when the Administration decided to temporarily withdraw the rulemaking in order to better solicit input from the small business community. The topic remains controversial with stakeholders taking opposing positions (support; criticism).
Agency Releases National Survey to Solicit Information from 19,000 Employers
OSHA launched a survey of private sector employers as a tool toward better designing future rules, compliance assistance and outreach efforts. Popular perception is that the collected information will instead be used as justification and/or guidance in developing the controversial I2P2 (Injury & Illness Prevention Program) rule. Some stakeholders look to the conceptually similar rule implemented by Cal-OSHA in the early 1990s as a benchmark.
Senator Introduces Legislation for Oil & Gas Field (Wells) Safety: FASTER Act
Senator Casey (D-PA) recently re-introduced a bill seeking to enhance emergency response at oil and gas wells through new OSHA regulations that place additional safety and preparedness requirements on operators. Faster Action Safety Team Emergency Response (FASTER) Act seeks to require: a) an employee knowledgeable in emergency response to be present at the well at all times; b) a certified response team to be available within three hours of ground travel in the event of an emergency; c) availability of communication technology, such as satellite phones, at the well site; and d) OSHA to be contacted within one hour of the start of an emergency.
Chemical Facility Security Bill Gets Stakeholder Input
Stakeholder recently testified to Congress that a security program for “high-risk” facilities (CFATS) should continue. However, there was not any agreement on if or how changes should be made. The House Subcommittee on Environment and the Economy held a hearing on CFATS (H.R. 908) that would extend the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards program for seven years. The program monitors more than 4,000 high-risk chemical facilities, and requires them to develop and implement security plans.
New Bipartisan Legislation Introduced in House and Senate Which Would Codify VPP as a Permanent Program
Members of both parties in the House and Senate introduced bills which would protect OSHA’s prestigious Voluntary Protection Program as a permanent component of the Agency’s mission. VPP recognizes worksites with exemplary safety and health management systems.
Obama Issues Executive Order #13563: Improving Regulation and Regulatory Review
Obama signed an Executive Order which effectively directs regulatory agencies, including OSHA, to conduct a retrospective review of their regulations to determine which ones may no longer be applicable, are excessively burdensome, inconsistent, ineffective, or redundant. OSHA has been conducting such reviews for many years as part of Section 610 Lookback Reviews which have recently included Methylene Chloride, Lockout/Tagout, and Lead in Construction to name a few. More recently, OSHA withdrew MSD reporting rulemaking and Noise re-interpretation — actions credited to the Executive Order.
OSHA Withdraws Controversial Proposal for Re-Interpretation of the Noise Exposure Rule
On Oct 19, 2010, OSHA unexpectedly proposed a re-interpretation of the Noise Exposure rule. The new interpretation would have clarified the term ‘administrative or engineering controls’ with the intent of driving protection reliance away from PPE and toward higher controls. After extending the comment period, the Agency withdrew its proposal after receiving many concerned comments from the business community (NAM, API) as well as bipartisan objections from Congress over its costs and resource intensive impact.
Midterm Elections of 2010 Result in New Congressional Dynamics
The midterm elections resulted in Republicans gaining 63 seats in the House and 6 seats in the Senate. The House subcommittee with jurisdiction over OSHA (Workforce Protections) is part of the renamed Committee on Education & the Workforce (Ed&Wf). The new Chair (Rep Tim Walberg –R, MI) and Ranking Member (Rep Lynn Woolsey, D-CA) are not aligned in what approach the subcommittee should take with oversight. Walberg is targeting oversight on the regulatory agenda while Woolsey is focused on OSHA reforms (PAWA) as proposed in the previous Congress. Introduced legislation by the full committee can be found here. While makeup of the House Ed&Wf committee is dramatic, its counterpart in the Senate (HELP) experienced much less ’turnover’ and seems more focused on mining safety and other non-OSHA issues.
OSHA Head Says State Plans Should Increase Penalties
In a speech, Dr Michaels says that State Plan States should follow Federal OSHA’s lead in increasing their respective proposed penalties. With OSHA using the new methodology to calculate proposed penalty amounts, Michaels has suggested that State Plan programs ought to do the same as part of meeting their responsibility being “at least as effective” as Federal OSHA since penalties serve as a deterrent to noncompliance.
OSHA Expects to Make Final Actions on at Least Four New Items in 2011
The Agency is working diligently to publish at least these four new final rules by the end of this year. These include: Confined Space in Construction, Electric Power Transmission, Standards Improvement Project (see Exec Order #13563 above), and General Working Conditions in Shipyards. Globally Harmonized System (Hazcom) and Cooperative Agreements might also become final later this year. SBREFA for Combustible Dust is expected to start soon. The Unified Regulatory Agenda for Spring 2011 is anticipated to be published within the next month or so.
The Agency’s Organizational Chart is Updated with Three Senior Positions to be Filled
With early year retirements and other organizational changes, the Agency’s updated org chart is provided here. OSHA is currently seeking to fill these positions Director of Tech Support & Emergency Management, Director of Cooperative and State Programs, and Regional Administrator for Region 6. Leadership for these positions is provided on an “Acting” basis. Jim Maddux (formerly with Directorate of Standards and Guidance) was promoted to Director of Construction.
Agency Will Mark its 40th Anniversary
Dr Michaels is leveraging this major milestone to reinforce his message (speech) that OSHA is committed to providing employers with important information to keep their employees protected from hazards. He asserts that the Agency’s enforcement policies are not counterproductive nor do its regulations hamper economic growth as some have criticized. “Standards that protect workers and enforcement of those standards result in a level playing field where employers who invest in safety are not underbid by those who cut corners on safety”, Michaels said. In 1970, about 14,000 workers died in the United States. In 1972, there were 10.9 injuries or illnesses per 100 workers. Both those figures fell in the ensuing years to about 4,400 deaths and a rate of less than 4 injuries and illnesses per 100 workers in 2009. “While worker deaths, injuries and illnesses are far lower today than 40 years ago, they’re not low enough. There is still much work to be done.”
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Follow us on Facebook: www.facebook.com/prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety, Citation.
Actually, this makes a lot of sense.
| Inspector General Reports OSHA Has Not Evaluated Its Enforcement Program Lack of clear guidelines hurts workplace safety |
| WASHINGTON, D.C. — The Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), today held a hearing to review state workforce protection plans and a recent Department of Labor Inspector General report critical of the Occupational Safety and Health Administration’s (OSHA) oversight of these state plans.
“Today, 27 states and territories administer workplace safety programs and the results of their efforts are remarkable,” said Chairman Walberg. “According to the Occupational Safety and Health State Plan Association, participating states conducted more than 61,000 inspections and identified an estimated 130,000 workplace safety violations. When compared to the federal safety program, state plans generally lead to more workplace inspections and result in more innovative safety solutions.” Testifying on behalf of the Occupational Safety and Health State Plan Association (OSHPA), Kevin Beauregard described why state safety plans are successful. ”One of the many benefits of State Plan Programs is the flexibility afforded States to address hazards that are unique or more prevalent in particular states, or are not already being addressed by OSHA,” said Beaugregard. “In many instances, State Plans have passed more stringent standards or additional standards that do not exist on the federal level, while OSHA labors through the standard adoption process that frequently takes not only years but decades.” Despite the success of these state workforce safety programs, an Inspector General report issued in March 2011 found state officials frustrated with the lack of clear expectations from OSHA. In fact, the findings reveal OSHA has not evaluated the success of its own enforcement program. As the report states, “OSHA is responsible for ensuring the effectiveness of State OSH programs. While it collects statistics on program activities, this is not sufficient to assess a state’s effectiveness in protecting workers. OSHA has not designed a method to determine that State Plans are at least as effective as Federal OSHA in reducing injuries and illnesses. Moreover, OSHA has not evaluated the impact of its own enforcement program in order to arrive at minimum criterion to evaluate state programs.” Testifying on behalf of the Inspector General’s office, Elliot Lewis discussed the impact a lack of clear standards has on worker safety programs: “This not only limits OSHA’s ability to ensure its own program operates in an effective manner but also to determine whether State Plans are, or are not, at least as effective as Federal OSHA.” Worker safety is a leading priority for the Committee on Education and the Workforce. As such, Chairman Walberg announced he will request the Government Accountability Office conduct a review of OSHA’s enforcement program. “In recent years,” said Chairman Walberg, ”OSHA has stepped up its scrutiny of state plans, and in many ways, this is welcomed. We want to ensure every safety program is producing results and protecting workers. However, OSHA has not experienced this same level of scrutiny, which is why I will be asking the Government Accountability Office to conduct a comprehensive review of OSHA’s enforcement program using the same standards of success OSHA uses to evaluate state plans.” To learn more about this hearing, please click here. *** Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part: Workplace Safety and Health Programs: Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements. Preparations for OSHA National Emphasis Programs (NEPs): Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability. Action Planning for OSHA Citations: Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance. Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues. Follow us on Twitter: @Prometrix Some helpful quick links: OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety.
|
The House (Ed & Workforce) Subcommittee on Workforce Protection is about to hold its oversight hearing on OSHA‘s State Plan programs. Majority witnesses include folks from DOL’s IG office, a State Plan Administrator, and a trade association representative. The Minority witness is a union representative from Change to Win.
WASHINGTON, D.C. | June 15, 2011 – On Thursday, June 16 at 10:00 a.m., the Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), will hold a hearing entitled, “Is OSHA Undermining State Efforts to Promote Workplace Safety?” The hearing will take place in room 2175 of the Rayburn House Office Building.
The Occupational Safety and Health Act allows states to administer their own workplace safety programs if they are “at least as effective” as the federal safety program. This has provided states with the ability to make safety decisions that best address the unique needs of its workplaces. Today, 27 states and territories administer a State Plan Program for worker safety, covering an estimated 40 percent of private-sector workers and approximately 10 million public-sector workers.
In recent years, the Occupational Safety and Health Administration (OSHA) has increased its scrutiny of state plans, and the failure to provide adequate federal funding as required by law has placed even greater strain on state budgets. Additionally, a March 2011 report by the Department of Labor’s Inspector General found OSHA has not been able to evaluate the impact of its own enforcement policies and therefore is unable to determine the effectiveness of state safety plans. This has left states without clear guidelines and may jeopardize the success of these important workforce safety programs.
Thursday’s hearing will give members an opportunity to review the findings of the Inspector General report and examine OSHA’s ability to adequately support state workplace safety plans. To learn more about this hearing, visit www.edworkforce.house.gov/hearings.
# # #
WITNESS LIST
Elliot Lewis
Assistant Inspector General for Audits
Office of the Inspector General
Department of Labor
Washington, D.C.
Kevin Beauregard
Assistant Deputy Commissioner/Assistant Director
Occupational Safety and Health Division of North Carolina
Raleigh, NC
Testifying on behalf of Occupational Safety and Health State Plan Association.
Peter Gerstenberger
Senior Advisor for Safety Compliance & Standards
Tree Case Industry Association
Londonderry, NH
Eric Frumin
Health and Safety Director
Change to Win
New York, NY
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety.
Tomorrow morning, Thursday 6/2/2011, the House HELP Subcommittee will be holding an oversight hearing on the Department of Labor’s financial mismanagement as reported in recent Inspector General Reports. The panelist will will be the Assistant IG for Audit, the Department’s Chief Financial Officer (in the hot seat), and the KPMG (the giant global accounting firm who can’t make heads or tails on DOL’s books). The title of the House hearing is: “Investigating Financial Mismanagement at the U.S. Department of Labor“. Because of the recent IG reports, the topics are likely to include DOL CIO, DOL CFO, OSHA, MSHA, Wage & Hour, and other groups within the department.
The hearing logistics are as follows:
Date & Time: 6/2/2011 at 10:00am (eastern)
Location: Rayburn 2175
Expected duration: 1.5 to 2 hours
To read the written testimony of the panelists or to watch the webcast live click here: http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=243332.
The impetus for this hearing was the audit statement of findings made by KPMG as well as the results of the investigation conducted by the Inspector General. Needless to say… the findings weren’t all that pretty.
Below is the media advisory released by the Subcommittee:
WASHINGTON, D.C. | June 1, 2011 –
On Thursday, June 2 at 10:00 a.m., the Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Phil Roe, M.D. (R-TN), will hold a hearing entitled “Investigating Financial Mismanagement at the U.S. Department of Labor.” The hearing will take place in room 2175 of the Rayburn House Office Building.
Since fiscal year 1997, the Department of Labor (DOL) has received a clean audit of its finances. However, on May 23, 2011, the department’s Office of Inspector General released an independent audit for fiscal year 2010, which identified four “material weaknesses” and two “significant deficiencies” in the department’s financial management. Weaknesses include a lack of sufficient controls over both financial reporting and access to key financial systems.
At a time when the national debt has surpassed $14 trillion, it is critical Congress exercise its authority to ensure the federal government is spending taxpayer dollars responsibly. The department oversees a number of efforts aimed at assisting individuals out of work, including a variety of job training programs, and mismanagement of scarce resources could potentially harm workers and taxpayers.
Thursday’s hearing will provide members an opportunity examine the findings of the audit and the department’s financial mismanagement.
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety.
Hot off the presses. Below is today’s press release from OSHA announcing a national survey to collect data which will be analyzed as utilized as part of the I2P2 rulemaking effort. Some 19,000 employers will get the survey and are asked to respond (information will remain anonymous according to the release) as soon as possible. The Agency hopes to have it analyzed by August — a pretty quick turnaround.
Press Release:
US Department of Labor’s OSHA launches national survey on employers’ safety and health practices to help guide future rules, compliance, outreach
WASHINGTON — The U.S. Department of Labor’s Occupational Safety and Health Administration has launched a survey of private sector employers as a tool toward better designing future rules, compliance assistance and outreach efforts. As many as 19,000 employers nationwide will receive the Baseline Survey of Safety and Health Practices, which asks questions about workplace safety and health management practices.
The survey will be sent to private sector employers of all sizes and across all industries under OSHA’s jurisdiction. Questions include whether respondents already have a safety management system, whether they perform annual inspections, who manages safety at their establishments and what kinds of hazards they encounter at their facilities. Participation in the survey is voluntary.
The survey is accompanied by a cover letter from Assistant Secretary of Labor for OSHA Dr. David Michaels. Contact information for OSHA and its contractor, Eastern Research Group, is included for respondents who have questions about the survey. They will receive a paper copy of the survey that can be filled out and returned to ERG and the option to complete it online. Only those who receive a paper copy of the survey will be able to complete the online version.
The agency expects the data collection phase to be completed by August. ERG will provide the results — which will be anonymous and cannot be used for enforcement — to OSHA.
OSHA published a notice of its intent to conduct the survey in the Federal Register on Aug. 12, 2010. Following a 60-day comment period, as required by the Regulatory Flexibility Act, OSHA published a second Federal Register notice for comments on Nov. 3, 2010, and received clearance from the Office of Management and Budget to conduct the survey. A pre-test with a sample of employers was conducted in April 2011.
For more information about the survey and to view a copy, visit http://www.osha.gov/national-survey/national-survey-announcementbaseline-survey.html.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.
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Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2, Safety.
I often sit back and think about technology and applying it to solve common problems — whether the problem is real or perceived. So I was thinking… I wonder if there’s a way to link something as a basic task, namely electronic worker time keeping, with safety and health recordkeeping.
A company such as www.AlliedTime.com make time clocks for employees to login/out for their hourly time keeping. Obviously, that’s tied into the employer’s payroll system. Company automates the process of tracking worker hours, tardiness, etc. Great. I just wonder if there’s a way to also incorporate (either directly into the time clocks or via a complementary system integrated into the company’s network) safety recordkeeping data….???
Maybe when the employee checksout, there’s a question prompt which asks if the individual experienced any sort of injury or near miss during his shift? It can then notify HR (anonymously or not) that an incident possibly occurred and there needs to be a followup inquiry to determine if it was a recordable, etc. It may also be a way of logging near-misses in addition to/or instead of recordables and first aids. Knock birds off with one stone: HR recordkeeping and assist with enhanced OSHA recordkeeping. Obviously, it would not replace traditional OSHA Recordkeeping techniques, requirements… but it might be a good tool to otherwise identify near misses or first aid cases? Just a thought.
I’ll have to noodle on this one for a while.
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2.
Texting While Driving << video link.
This is a powerful video on the consequences of distracted driving, specifically texting while driving. Brought to you by AT&T.
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Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2.
Last November, OSHA requested permission from OMB to conduct an extensive survey of employers. The purpose of the survey is to learn about their safety and health practices that may become elements of the agency’s injury and illness prevention program(I2P2) rulemaking. This baseline survey is expected to yield almost 11,000 responses and will apparently seek feedback from private sector employers as well as State Plans (public sector). OSHA is not able to conduct such surveys without OMB prior approval. I presume that recipients are not REQUIRED to respond, but I do not know that for sure one way or the other. So, if your site is uncomfortable in providing proprietary information, you may want to get clarification before declining.
This effort is in support of the Agency’s rulemaking activities on the Safety & Health Program Rule (I2P2) – a top regulatory priority at the Agency as it would require all covered employers to implement a program to recognize and eliminate occupatioanl hazards. It’s my understanding that some 12-14 State Plan States already have some form of this rule in place now. It is certainly highly encouraged that all employers implement a safety and health program. This issue has been a controversial one over the years because of how it might be implemented as an actual standard – regulatory text/requirements as well as how it might be enforced.
Anyway, OSHA approval from OMB was recently received by the Agency and is presumably “in the works”. Employers and State Plan officials should expect to see the survey soon (if selected).
Mean time, the SBREFA Panel for I2P2 is scheduled to begin in June 2011. I don’t know -at this point- how the timing of the survey and the SBREFA Panel are being (or if) coordinated. The OMB letter suggests forms were included in the transmittal to/from the Department of Labor but are not provided in the docket. Since they are surveying employers and collecting as much “good” information as possible is their obvious aim, it would have been nice to provide the opportunity for any/all employers to submit comments via Federal Register Notice.
I commend OSHA for soliciting input from those who might be affected by the rule, if ultimately promulgated. Their intent is a good one. My only concern is how it will be received by those selected — as an opportunity to provide data, with enforcement skepticism, etc. I suppose that will ultimately be decided on how those surveys were constructed/structured. Time will tell.
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs, I2P2.
On March 16th, the House Oversight Subcommittee on Regulatory Affairs held a hearing titled: “Regulatory Impediments to Job Creation: The Cost of Doing Business in the Construction Industry”. The hearing consisted of two panels. First: mostly engineering and construction business community and academia. Second: Federal officials from GSA, WH, and OSHA. For those interested in OSHA, the second panel will be of greater interest to you.
The Panel2 is a little more than an hour long. Much of the hearing covers two basic areas. One being PLA (Project Labor Agreements and how are they are being implemented as taxpayer funded projects) and the other generally covering OSHA. But if you want to get to the meat of the hearing from an OSHA perspective, I suggest forwarding and viewing these 2 key sections: 45:00 through about 57:00 and 1:03:00 through the end. It’s a bit of an eye opener considering that it conflicts with previous messages from the Secretary of Labor as well as the White House itself. Click here for the video: Panel 2: House Oversight Hearing
Specifically, Dr Micheals states unequivically that what is needed is more regulations. And that’s when the discussion took a series of interesting twists. OSHA stated that regulations are needed to clarify for employers what is needed to properly protect their workers. Meanwhile, the Committee was quick to point out that if “clarification” will do the trick, then why not just provide such ‘clarity’ (for example, guidance materials, etc) to educate employers/workers instead of issuing more regulations which are intended to be used for punitive measures. Afterall, PREVENTING injuries ought to be the goal — not punishing employers after the fact, should they occur.
That wasn’t the only place that OSHA ran off the message track so to speak. Near the very end of the hearing, there was some back-and-forth bantering when OSHA insinuated that employers don’t care for the welfare of their own employees. That was cynically received by the Committee as suggesting that a bureaucrat in Washington cares more about the employees at Company X than the owner and colleagues of that very same company. Obviously, this wasn’t a path OSHA wanted to go down because of the folly in even suggesting such thing. If that’s the argument path that OSHA will seek to continue with in the future, then I fear that their credibility will be irrevocably shot for it would suggest that they view workplace safety through a ‘political’ instead of ‘protection of workers’ lense. Obviously, that won’t be their intent… but the perception will still likely develop that way.
***
Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements. These services include, in part:
Workplace Safety and Health Programs:
Prometrix experts can help you establish a workplace safety and health program that sets the foundation for OSHA compliance and worker protection. We can also review existing programs to ensure ongoing compliance with complex requirements.
Preparations for OSHA National Emphasis Programs (NEPs):
Our staff of former senior OSHA officials will conduct a thorough mock inspection consistent with NEP directives and Agency procedures to identify and address areas of vulnerability.
Action Planning for OSHA Citations:
Our staff will analyze your case, and if applicable, negotiate a settlement or help contest an unfair citation predicated on us also helping you implement corrective safety and health programs for continued compliance.
Contact us via http://prometrixinc.com/contact-us or info@prometrixinc.com regarding your OSHA compliance issues.
Follow us on Twitter: @Prometrix
Some helpful quick links:
OSHA Consulting, OSHA Consultants, OSHA Experts, Prometrix, Prometrix Consulting, OSHA Resources, OSHA Blog, Diacetyl, Diacetyl NEP, OSHA Diacetyl, DAPORS, DIACETYL SHIB, OSHA Compliance, OSHA Regulatory Affairs.