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Monday, January 6, 2014

5 Resolutions OSHA Should Make Now

Dear OSHA,

Happy New Year! What a perfect time for reflection and self-improvement. I sure have been puzzled by some of your recent behavior, but I think I’ve identified the problem: You are having a midlife crisis.

I know you turn 43 on April 28, and I congratulate you on your record of successes. About 38 workers died on the job every day in 1971; last year, that number was down to 13 a day in a workforce that has almost doubled in size.

© iStock / ZooCat

Will the silica rule move forward this year, as long promised, or will more delays ensue?

Still, 13 people a day is pretty near the equivalent of a jumbo jet full of people crashing every single month—with most of those victims in our industry. And last year actually saw a spike in construction-related deaths, while the overall figures improved.

So, yes, OSHA, I think there’s room for improvement. And like all good elders, I have plenty of unsolicited advice for you. Here's a ready-made list of resolutions, in case you haven't had time to make your own. This year, OSHA, you need to:

1. Get serious about human life.

Q: What do these fines have in common?

  1. $1,875
  2. $7,600
  3. $10,000
  4. $77,200

A: Each—and dozens of others, of varying totals—has been issued to employers for fatal accidents reported in PaintSquare News.

The $1,875 fine was paid in the death of a worker whose head was smashed by an 850-pound steel cofferdam whaler brace that was cut free before a crane was supporting it. The $77,200 fine was imposed in the asphyxiation of a cleaner inside a methylene chloride tank at a paint thinner plant. (Full disclosure: The fine has been tentatively reduced to $59,520.)

Granted, OSHA fines reflect unique violations found on each inspection. They are not, strictly speaking, the price that the agency puts on a life.

But $1,875 for a death caused by the carelessness of an employer that pulls in nine figures annually? Seriously?

(By the way, the Justice Department imposed a criminal penalty of $4.5 billion in the deaths of the 11 Deepwater Horizon workers who perished in the April 2010 explosion and fire. That’s about $409 million per worker.)

2. Drop the wheeling and dealing. Yes, there must be room for negotiation. But enforcement shouldn’t be an episode of Let’s Make a Deal.

Welspun Tubular
Welspun Corp.

Welspun Corp. has seen five OSHA cases in five years after workers were killed or maimed. And yet, the agency has repeatedly reduced the company's fines.

When negotiated fines are often half or less of the original, who is served? When a company is nailed five times in five years after a death and amputations, and the fine is slashed by half every single time, guess who's laughing all the way to disposition?

When an employer (a fellow federal agency yet) goes from repeat violator to star status in a few weeks, what does that say about your judgment?

Thousands of employers work hard every day, on every job, to keep every employee safe. They invest serious time and money to train; develop health and safety policies; and nag, sanction and incentivize top-notch practices.

What message are you sending these employers when they see some bad-egg company slapped on the wrist year after year?

Now, in fairness, according to figures provided by an OSHA spokesperson, the deals have decreased. In FY09, six in 10 contested inspections received penalty reductions; in FY12, the percentage was 45.64 percent.

U.S. Air Force / Sue Sapp

Operations at Robins AFB received both violations and "Star" status just weeks apart.

Moreover, the overwhelming majority of OSHA citations are not contested, the agency says. And yet, the spokesperson said, the agency does not keep aggregated data on settlements, so the big picture remains a bit cloudy.

Still, it seems high time to re-examine what you’re citing, OSHA. After 42 years, you and your team should have a pretty good idea about what citations and fines are going to stick on appeal, especially on the high-profile, most-serious cases that everyone is watching.

Don’t expose the whole enforcement process to mockery by treating a fine as a new-car sticker price that everyone knows is fiction.

3. Fix or scrap SVEP.  A year ago, OSHA, you issued a self-congratulatory White Paper that said your Severe Violator Enforcement Program was “off to a strong start.” We’re not sure what you mean by “strong,” since the same paper admits:

  • “Follow-up and related inspections of construction companies have been difficult. Because of the short-term nature of the jobs and the small size of the companies, they often cannot be located for follow-ups”;
  • “To date, few SVEP cases have triggered related inspections of the same employers across multiple sites”;

And so on. Meanwhile, critics say the program is a flop. One labor attorney said the available data “casts doubt on the program’s effectiveness and reveals several glaring problems with how the SVEP is being administered.”

Those problems include gunning disproportionately for small employers and a process that has invited a slew of legal challenges, reports labor attorney Eric J. Conn.

SVEP is a good idea, OSHA. But fix it, or forget it.

4. Get your own house in order. You’re rightfully fond of issuing record-keeping violations, OSHA. Accurately documenting illnesses and injuries is critical. Now, how about a little spit and polish on your end?

Senate HELP Committee

A recent report by the Senate Health, Education, Labor and Pensions (HELP) Committee found major health, safety and wage violators among the leading current federal contractors. Painters, construction workers, abrasive blasters and other workers are dying, getting injured or ill, or being stiffed for wages while their employers continue to reap fat federal contracts.

Almost 30 percent of the top violators of federal wage and safety laws are also current federal contractors, with taxpayer dollars "routinely paid to companies that are putting the livelihoods and the lives of workers at risk," the report said.

Some of these companies have had unresolved violation records with OSHA for 10 or 20 years.

Why? The Senate panel blamed, among other things, “substantial errors” in the Department of Labor databases, including multiple identities of companies that make tracking records difficult.

VT Halter Marine

Two workers on a painting project at VT Halter Marine were killed in an explosion in 2009. But the 28 OSHA citations issued were not available in the federal Clean Contracting Act database.

5. Stand up for your rules. Silica, beryllium …  we have lost count of the number of rules that you have proposed or floated year after year, only to see delays and inaction. Rule or don’t rule, but please don’t issue proposals you aren’t ready to enact.

OSHA, we understand that you have a big job, and we know that your resources are leaner than ever.

But you’re almost 43. This is a pivotal moment in your life.

Skip the red sports car, and grow up.

More items for Health & Safety

Tagged categories: Accidents; Fatalities; Health and safety; OSHA; Regulations

Comment from Paul Mellon, (1/7/2014, 10:02 AM)

Well said Mary. Perhaps in 2014, our friends at OSHA will get it together and make things happen instead of watching life go by. I can attest to the fact that once you are in your 40's, its time to start getting it done!

Comment from Dan Chute, (1/7/2014, 11:48 AM)

Mary - Welcome to PaintSquareNews and thank you for bringing occupational safety to the top of the list right off the bat! I agree that OSHA - like any organization- can always make meaningful improvements. The punitive actions you recommend, however, may create some sensational headlines and economic dislocation, but are not likely to provide effective improvements to real-life safety program improvements or accident reductions. 1. It’s EMPLOYERS and their EMPLOYEES that take meaningful action to reduce injuries and illnesses- OSHA’s not inside the gate on the work crew. Let's direct safety performance challenges to the folks responsible for the job; 2. Many of OSHA’s violations (like EPA’s) are due to paperwork issues and gaps in the documentation of policies, postings and training records and not related to any quantifiable exposure to a hazard. Total violations and citations issued is not a clear indication of risk or danger. 3. OSHA’s response to an accident or injury is always AFTER the incident happens; Safety professionals and employers work to PREVENT the incidents. Prevention - so you don't need to see OSHA - is a more effective priority. OSHA, to their credit, will tell you that also. 4. BLS accident and injury rates (last time I looked) demonstrated and consistent and ongoing downward trend over the past 40 years, reaching all-time lows a few years ago. Rightfully so, OSHA proudly shares these performance statistics on their website at There is some good news. 5. Our government agencies (according to the news) are crippled by budget, performance and resource management challenges. Do we, as citizens, really want to add to their burdens when we may be able to provide a better solution? Don't the folks at OSHA deserve a chance for a good day on the job, too? Thanks for stimulating the discussion.

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