Learn everything you need to know about OSHA Compliance & Guidelines in this comprehensive blog post
Is Managing Workplace Safety Really That Important?
In short, the answer is an emphatic “yes” because companies who fail to do so put their employees at needless and significant risk for serious injuries or even death, not to mention major fines and penalties that can literally run into the $10s or even $100s of thousands of dollars.
Being negligent about safety can also put the company and ownership at risk for civil and even criminal liabilities including settlements that can run into the $millions of dollars, and possible jail time.
These are just some of the risks associated with failing to manage safety, but there are many more.
The problem is – navigating the complex and ever-changing OSHA regulations is extremely confusing. As a small company, you and your team are already stretched thin, and the thought of navigating the complicated mess of compliance standards can be flat out overwhelming.
If you find yourself confused by safety laws or suspect that you might be doing it wrong – you are not alone.
Hi, my name is Russell Carr, President and founder of Berg Compliance Solutions. During my career as a small business owner and entrepreneur, I owned and operated 3 small contracting businesses which exposed my employees to major health and safety hazards on a regular basis. While we never experienced any serious employee injuries, I was cited by OSHA & suffered other related losses and problems including skyrocketing Workers Compensation Premiums and lost business opportunities due to my own safety program mistakes.
I know how it feels and I don’t want this to happen to you.
That’s why I founded Berg Compliance Solutions, a new kind of consulting company with a mission dedicated to help small companies like yours to design OSHA & EPA programs to manage environmental, health and safety compliance and risk.
Part of our mission includes providing free, no obligation educational resources specifically designed to help non-experts better understand and manage OSHA compliance.
We currently have Googles #1 national search results for blogs discussing “How To Build a Safety Program From Scratch” and “How to Understand TRIR and DART” (2 critical safety performance indicators that you need to know about).
This inspired me to write this new blog post called OSHA Compliance 101 for small companies. It’s not only based on the regulations, but also on my many years of trying to manage them in a small business environment.
By the time you’ve finished reading this blog, you’ll have gained a much better understanding of what OSHA demands of your company and can then begin to use that knowledge to assess your company’s current OSHA compliance condition, determine what needs to be corrected, and hopefully begin work on building your own customized safety program.
With that said, let’s get on with it!
The Occupational Safety and Health Administration was created in 1970, and is a division of the US Department of Labor. OSHA is tasked with ensuring that US workplaces are as safe and healthy as possible for American workers. Prior to OSHA’s creation, there were an average of 14,000 work related fatalities each year in the US, or 38 deaths every single DAY. Today that number has decreased by 65% to approximately 4,200 deaths per year or 12 per day.
OSHA’s impact is actually much better when you consider that the number of US jobs has more than doubled since that time.
Most states fall under the jurisdiction of Federal OSHA, but 27 states have their own state plans that must meet or exceed OSHA Federal standards. Texas falls under Federal OSHA which means that all Texas manufacturers must meet or exceed all of OSHA’s health and safety laws.
OSHA oversees manufacturing & industrial services (General Industry), construction, maritime and even agriculture. They promote health and safety in these areas through 3 primary means: outreach, development of Standards, and enforcement.
Outreach has to do with providing employers with resources, such as their website, training resources, & documentation which are designed to help employers understand and manage their health & safety obligations.
Standards are the basic regulatory requirements that OSHA has developed for managing specific health and safety hazards that exist in the workplace. We’ll talk more about what Standards consist of later in this document, but first let’s clarify what OSHA means by “safety & health hazards” and how Standards help to address them:
Safety hazards include things like falls from heights, burns from contact with corrosive chemicals, or exposed moving machine parts or pinch points that could result in amputations.
OSHA has developed corresponding safety Standards to help employers manage these risks, such as the Fall Protection Standard, Hazard Communication Standard (chemical safety) & the Lockout/Tagout Standard (control of hazardous energy).
Health hazards, on the other hand, include things like hearing loss and lung disease. In order to manage these hazards, OSHA has created corresponding health Standards such as the Hearing Conservation Standard to protect employees from excessive noise, and the Respiratory Protection Standard to protect employees from health hazards like dust, organic vapors, silica, and many other chemicals.
Be aware that there are many hazards that OSHA has yet to address with a formal Standard, however, are managed under the “General Duty Clause.” The General Duty Clause is a “catch-all” and essentially states that employers must identify and eliminate ANY hazard that exists within their operations (even if there isn’t a specific OSHA standard to address it) in order to protect their employees. An example might be an awning that covers an employee break area, where the employer knows that one of the supports is cracked and could potentially fail causing a collapse of the entire awning. Other examples include things like heat stress. Although OSHA doesn’t have a formal standard for managing heat related hazards, they do offer general guidelines that employers should follow. It’s important to understand that OSHA can, and routinely does, issue major fines and penalties to employers under the General Duty Clause.
Interestingly enough, many of these standards were developed back in the early 70’s and haven’t changed much since that time. Due to this fact, OSHA regulations should be viewed as “minimum standards,” and companies who desire to go “above and beyond” should reference more updated guidelines from alternate resources such as National Institute for Occupational Safety & Health (NIOSH), National Safety Council (NSC), American Industrial Hygiene Association (AIHA), American National Standards Institute (ANSI), American Society of Mechanical Engineers (ASME), Compressed Gas Association (CGA), National Electric Code (NEC), National Fire Protection Agency (NFPA), and Underwriters Laboratories (UL). These measures will help to ensure the maximum health and safety of their employees, and protect their businesses from related risks and liabilities
For companies who want to go above and beyond OSHA standards, and help ensure the success of their safety programs, then building a strong safety culture is key.
Enforcement may occur if OSHA becomes aware that an employer is failing to protect their employees by managing the Standards, and/or General Duty Clause hazards, that exist, or apply to their operations.
OSHA’s Enforcement tool kit is extensive, and includes fines that often run into the $10s and even $100s of thousands of dollars, penalties such as enhanced scrutiny programs (ie: Severe Violator Enforcement Program), and even public humiliation when they issue damning press releases about violating companies that end up in local newspapers, trade journals and on-line for the local community, competitors and worst of all, customers to see and read.
For the purposes of this guide, we’re going to focus the remainder of our attention on Standards and Enforcement, so you’ll gain a better understanding of what OSHA demands of your company, and the “price tag” for failing to be in compliance.
More on OSHA Standards
Think of OSHA Standards as consisting of 6 major components that all employers must address and manage on an ongoing basis. There are other components, but these are the basics. They include:
- Administrative Requirements
- Employee Training
- Health/Exposure Testing
- Identifying and Abating Physical Health & Safety Hazards
- Internal Enforcement & Accountability
Let’s look at each of these components more thoroughly:
These include a company’s written programs, policies and procedures, often referred to as a “safety manual.”
Many companies make the mistake of drafting, or downloading a generic Health & Safety Manual and/or policies from the internet, or from their insurance company, sign it and then put it up on the shelf and then mistakenly believe that they’re now “in compliance.”
Nothing could be further from the truth, and here’s why: First of all, your company’s health and safety manual must be customized to address the specific health and safety hazards that actually exist at your company.
In other words, the manual must include all of the corresponding OSHA Standards, and/or policies and procedures that will allow your company to manage and control each of these specific hazards. Not having enough standards included in your manual means that you’ve missed something, and having too many means that you’ve signed yourself up to manage things that have nothing to do with your operations.
Your company must conduct a detailed assessment of your operational hazards and create a customized manual that addresses all applicable hazards.
Another problem with using a “generic” safety program is the key “company specific” sections the company must address and include in their documentation. Examples include a Confined Space inventory, equipment specific Lockout/Tagout procedures, chemical inventory, unique emergency response plans, etc. These requirements are routinely overlooked and can result in major fines and penalties.
The other major challenge is the fact that each of the OSHA Standards contains elements that the employer must actually DO and MANAGE on an ongoing basis. Examples include conducting employee training, record keeping requirements, conducting routine inspections, drafting & using equipment specific Lockout/Tagout procedures, and developing Hazard Assessments for each job task in your plant. There are many other elements, but these are some of the big ones that companies often miss.
Let’s take a closer look at some these “elements” and components…
Employee health and safety training requirements are extensive, and therefore pose one of the biggest compliance challenges for employers. There are many topics that need to be covered, which is very time consuming, and often requires pulling employees off the production line, which can be very expensive and inconvenient to do. When you add in employee turnover and the requirement to continually train new employees, the challenge becomes even more daunting. Nevertheless, OSHA mandates that it gets done, and employers who fail to do so not only put there workers at risk, but also risk stiff fines and penalties.
Why is employee training so important? As stated above, OSHA mandates that companies protect their employees from all health and safety hazards in their workplace, and training is one of the most effective tools, or “controls,” for ensuring that this happens.
It’s also important to understand that a very high percentage of serious work- related injuries and fatalities occur within the first few hours or days that a new employee goes to work for a company. And that’s because, more often than not, these employees were never trained on the hazards that exist at that particular company and therefore didn’t know what to expect or how to protect themselves. Unfortunately this is an all too common occurrence.
OSHA mandates many safety training requirements, but here are the major points:
- To begin with, each OSHA Standard includes a specific training requirement. Common examples include Personal Protective Equipment (PPE), Hazard Communication (OSHA’s chemical safety standard), Control of Hazardous Energy (Lockout/Tagout), Powered Industrial Trucks (Forklifts), Confined Spaces and many more.
- Employees who are exposed to these specific hazards must be trained on the appropriate topics.
- Health & Safety training must be “customized” to address your company specific hazards. In other words “generic” training only meets half the standard. Your training must include the technical information provided in the standard, plus additional content which address your company specific hazards.
- Keep in mind that most topics take 30-60 minutes to fully train. In other words, 10-15 minute “tailgate” training sessions given by supervisors don’t meet the standard.
- OSHA has a comprehension requirement, meaning that your employees must be able to understand and apply what they’ve learned. This means that training must be delivered in the correct language and employees must be able to ask questions, and get appropriate answers.
- Frequency: Some topics need to be trained only once, but many have an annual training requirement, however it’s always recommended to train appropriate topics annually in order to help keep safety “top of mind.”
- OSHA requires that employers maintain “training certifications” on file proving that employees were trained. This can be as simple as “sign-in sheets” which include the topic trained, date and names and signatures of all employees who were trained.
- All new employees must be trained BEFORE they start work. This is a key requirement that many small companies struggle to manage.
OSHA’s primary record keeping requirement has to do with OSHA 300 logs, which are their Injury & Illness Record Keeping forms (but for practical purposes, record keeping also incudes employee training records, exposure test results, and more..).
Basic OSHA 300 Log requirements:
- Any employer with 11 or more employees in any given year must maintain their OSHA 300 logs.
- Must maintain 5 years of logs on file (OSHA would likely request these records if completing a comprehensive enforcement inspection and can issue fines for failure to have them.)
- Only enter “Recordable” incidents. There are many criteria for determining whether or not an injury or illness is “Recordable,” but the fundamental requirement is if the employee required more than basic first aid treatment. The key is to understand OSHA’s definition of “First Aid.” Many companies end up over-reporting injuries which can result in inflated TRIR and DART scores, which in some cases can trigger OSHA enforcement actions, or lost business. Someone at your company needs to understand how to properly record injuries and illnesses.
The 3 OSHA Logs:
- OSHA 300: Log of Work Related Injuries and Fatalities
- OSHA 300A: Summary of Work Related Injuries and Illnesses
- Includes calculation of your Total Recordable Incident Rate (TRIR) and Days Away, Restricted, Transferred (DART) scores. These are your company’s critical health and safety performance indicators/metrics.
- Must be posted at your workplace each year from February 1st, through April 30th
- OSHA 301: Incident Report
Employers must not expose their employees to excessive levels of OSHA listed chemicals and contaminants, nor excessive noise levels. OSHA publishes PELs (permissible exposure limits) for noise and a wide array of chemicals and contaminants.
Employers must conduct exposure testing whenever a new suspect process, or suspect piece of equipment, is installed. No new testing is required unless something changes in your process which might impact/change the original testing results.
- If your company has suspect noise levels in a particular area, or multiple areas, then you must conduct noise testing to determine whether or not the noise exceeds their PEL.
- If noise levels exceed OSHA’s 85 decibel PEL over a time weighted 8 hour period, then your company must either institute engineering controls (noise dampeners for example), administrative controls (rotating shifts for example), or as a last resort, implement a Hearing Conservation Program which includes selection and use of adequate hearing protection, and baseline and annual hearing testing for impacted employees.
- If your company has suspect chemicals or contaminants in a particular area, or multiple areas, then you must conduct exposure testing to determine whether or not the levels exceed their respective PELs.
- If levels exceed PEL(s), then your company must either institute engineering or administrative controls (rotating shifts for example) to minimize exposures, or as a last resort, implement a Respiratory Protection Program which has many management elements including proper selection of respirators, respirator fit testing, cartridge change schedules, annual medical evaluation, etc.
An estimated 20% of all injuries and fatalities are the result of “physical hazards” that exist in the workplace. As a result, identifying and abating these potential hazards should be a top priority for your company. If that isn’t motivation enough, then be aware that physical hazards
are the “low hanging fruit” for OSHA enforcement officers, and result in the vast majority of fines and penalties when enforcement inspections occur.
What are “physical hazards?” Examples include unprotected pinch points on machines (“machine guarding issues”), unprotected heights above 4’ (ie: no guardrails, ladders or personal fall arrest systems on a high walkway), damaged electrical chords, blocked exits, blocked electrical panels, unlabeled chemical containers, and the list goes on and on.
How does a company identify and abate these hazards? OSHA has a requirement that companies conduct “routine inspections to identify and correct hazards in the workplace.”
These inspections must be conducted often enough to ensure that all hazards are identified and abated, and must be conducted by a competent, experienced person who understand how to identify hazards and how to properly correct them. Even when corrected, these hazards have a nasty way of re-occurring over and over and over again. To make matters worse, new, or previously undetected hazards also have a way of rearing their ugly head on a recurring basis. As with training, companies find that routine inspections and abatement are a never ending process.
For practical purposes, it’s recommended that your supervisors receive basic training on how to “eyeball” hazards, so they can identify and correct them as they appear, and to conduct more formal inspections using a check-sheet for example, either daily, weekly or monthly. This should be backed up by management inspections and even 3rd party inspections conducted by experienced professionals for companies who don’t have a full time and qualified safety manager.
Now that you have a better understanding of your OSHA compliance requirements, it’s time to discuss how to ensure that your employees “follow the rules” set forth in your company policies.
This is one of the most critical elements of your compliance program, because failure to do so seriously undermines and compromises your other compliance efforts. This may sound like a stretch, but it’s true. Refer back to OSHA’s dictum noted at the beginning of this document, which states that every employer is required by law to “Provide a Safe & Health Workplace.” You can literally have “all of the compliance boxes checked,” but if your company fails to manage accountability, you’re essentially allowing your employees to engage in dangerous behavior. This is a clear violation of OSHA’s dictum because it creates a potentially unsafe and unhealthy workplace for your workers.
So, how can you enforce your policies to meet this standard? Here are some basic guidelines:
- Train your employees, document all training and retain those records.
- Provide all necessary personal protective equipment (PPE) and demand its use by your employees.
- When employees fail to follow policy, such as not wearing safety glasses or failing to follow LOTO procedures, then implement graduated accountability:
- Verbal warning for first or second time offenses
- Written warnings for additional offenses
- Penalties/Punishment for continued offenses such as docked hours, or even termination of employment.
- Be CONSISTENT with these procedures so that your employees get the clear message.
We understand how difficult and challenging it can be to enforce these rules, and how damaging it can be to lose valuable employees, but following these guidelines is your company’s only plausible defense to potential OSHA citations, and even civil or criminal liability if an employee is seriously injured or killed. Employers have the right to claim employee “misconduct” in these cases, but only if consistent accountability & training records can be documented.
In addition to exposing their employees to serious injuries and even fatalities, non-compliant employers expose themselves to severe punitive measures, including huge fines and penalties and even potential criminal liability directed towards business owners.
When these things happen, businesses often suffer additional public humiliation and PR nightmares when OSHA issues press releases that get published and written about in local newspapers, trade journals and on-line for the local community, competitors and worst of all, customers to see. If that weren’t bad enough, according to the recently approved Federal budget for 2016, OSHA has been authorized to increase fines next year to account for inflation back dated to 1996 which will result in an estimated 78% increase to the existing fine schedule (see details below). This increase in monetary fine costs on basis is, now, set to occur on an annual basis following its implementation in 2016.
- OSHA enforcement efforts are currently at historically high levels and have been rising consistently since 2008 with no signs of slowing down. This trend will only continue under the Biden Administration who has already pledged its commitment to workplace safety.
- The number of “Significant Enforcement Cases” (ie: single inspection resulting in total fines exceeding $100,000) has more than doubled since 2007.
- The average comprehensive OSHA enforcement fine has historically ranged between $30,000 and $85,000 per inspection, but in many cases has exceeded $100,000. With the 78% fine increases implemented in 2016, these average fines are only expected to increase.
- OSHA could show up at your door at any time, without warning to conduct an enforcement inspection, so you need to be ready.
- OSHA’s annual requirement for establishments between 20 and 250 employees to electronically post the 300A to OSHA’s online Injury Tracking Application (ITA). Covered establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The requirement to keep and maintain OSHA Forms 300, 300A, and 301 for five years is not changed by this Final Rule. March 2, 2020, is the deadline for electronically reporting your OSHA Form 300A data for calendar year 2019. Collection will begin January 2, 2020.
- OSHA revised the Hazard Communication Standard (29CFR1910.1200) in 2012 formally adopting the Globally Harmonized System (GHS), which led to the transition from the “Right to Know Standard” to the “Right to Understand Standard.” The requirement to comply with this updated Hazard Communication standard began in 2016. At this point in time, the following program components became enforceable:
- In-plant labeling for all hazardous chemicals on site that comply with the new GHS format
- Employee training on the hazard communication standard and in-plant labeling and Safety Data Sheets (SDS)
- Safety Data Sheets (SDS) on site updated to the standard, 16-section format classifying hazardous chemicals using the GHS.
- Updated written hazard communication program
- Most of the rule will become effective January 17, 2017, 60 days after publication in the Federal Register, but some provisions have delayed effective dates, including:
- Ensuring exposed workers are trained on fall hazards (May 17, 2017),
- Ensuring workers who use equipment covered by the final rule are trained (May 17, 2017),
- Inspecting and certifying permanent anchorages for rope descent systems (November 20, 2017),
- Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (November 19, 2018),
- Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (November 19, 2018), and
- Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (November 18, 2036).
- Annual updates to OSHA monetary fine values for occupational safety citations to adjust for inflation (see below).
- Historical data shows that 20% of all inspections are triggered by an employee complaint, but this number rose to 25% in recent years. This is because OSHA is giving increased attention to “whistleblower” complaints in recent years.
- Poor safety performance: High DART scores (Days Away, Restricted, Transfer) can result in companies being added to OSHA’s “SST Program” (Site Specific Targeting Program) and targeted for inspections. These inspections are typically “comprehensive” in nature, and will include scrutiny of all aspects of a company’s OSHA compliance programs including policies, procedures, employee training records, record keeping requirements, & physical hazards on the shop floor. These “comprehensive” inspections typically result in the highest fines.
- National Emphasis Programs (NEPs): OSHA continually identifies high hazard industries and specific hazards to be targeted for comprehensive inspections. Examples of current NEPs in Texas that impact manufacturers include Fall Protection, Steel Fabricators, and Noise hazards.
- Employee injury or fatality: OSHA instituted new injury and fatality reporting guidelines that went into effect January 1st of 2015 as follows:
- Report all fatalities to OSHA within eight hours
- Report each work-related inpatient hospitalization, as well as amputations and losses of an eye, to OSHA within 24 hours
When OSHA receives notification of a serious employee injury, or especially a fatality, they will often respond with an enforcement inspection.
- WILLFUL: A willful violation is defined as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.
- SERIOUS: A serious violation exists when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation. This is the most common type of citation.
- REPEATED: A company may be cited for a repeated violation if the company has been cited previously for the same or a substantially similar condition and, for a serious violation, OSHA’s region wide inspection history for the agency lists a previous OSHA Notice issued within the past five years; or, for an other-than-serious violation, the establishment being inspected received a previous OSHA Notice issued within the past five years.
- OTHER-THAN-SERIOUS: A violation that has a direct relationship to job safety and health, but is not serious in nature, is classified as “other-than-serious.”
The recently passed Bipartisan Budget Act of 2015, H.R. 1314, Sec. 701, signed into law by President Obama on November 2nd, 2015 allows for significant increases for OSHA civil penalties and fines to keep pace with inflation, retroactively to 1996. The provision apparently allows for continued increases in OSHA fines to account for future costs of inflation.
Based upon the “CPI Inflation Calculator” from the Bureau of Labor Statistics (BLS) website, the maximum allowable OSHA fines are listed below:
- “Other Than Serious” citations were raised from a previous maximum fine of $7,000, to as much as $13,653 each
- “Serious” citations were raised from a previous maximum fine of $7,000, to as much as $13,653 each
- “Willful” citations were raised from a previous maximum fine of $70,000, to as much as $136,532 each
- “Repeat” citations were raised from a previous maximum fine of $70,000, to as much as $136,532 each
Potential Personal Criminal Liability for Business Owners
Most business owners don’t understand that there’s potential personal criminal liability associated with work related fatalities, but there is:
- If an employer is convicted of a willful violation of an OSHA standard that has resulted in the death of an employee, the offense is punishable by a court imposed fine or by imprisonment for up to 6 months or both.
- A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
OSHA adopted a formal policy of publicly shaming violating companies by publishing damaging press releases about their infractions.
- According to Dr. David Michaels, former head of OSHA, “the most effective means for OSHA to encourage elimination of life threatening hazards … is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.”
And dubbed this enforcement initiative “regulation by shaming”
Once these press releases are published, they’re often duplicated and written about in local newspapers, trade journals an on-line for the local community, competitors, and worst of all, customers to see and read. This can quickly spiral into a PR nightmare that’s impossible to manage and the damaging impact can linger for years. Not only can this result in embarrassment, but can sometimes lead to lost business and the local community shunning employment opportunities over fear for their safety.
Although not part of OSHA’s enforcement toolbox, employers can face additional and significant civil liabilities if employees are injured or killed on the job. These employees, or their families, can team up with a personal injury lawyer to seek damages including physical pain, loss of the enjoyment of life, mental anguish, loss of earning potential, disfigurement, etc. These settlements often run into the $millions and can deal a deathblow to smaller companies.
Thanks for taking the time to read this blog, and we hope that it succeeded in educating you and your staff on the fundamentals of OSHA regulatory requirements, and how to manage them.
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