OSHA Finally Gets Tough On Penalties
I worked for OSHA from 1974 until early 1978 and in those days the belief was that companies would fall all over themselves trying to comply with OSHA if we just visited them and “dropped off” a copy of the regulations. After all, who would argue with worker safety as a top business priority, right? The day I left OSHA, my boss, the Area Director asked me “why” people didn’t “get it” when it came to worker safety. The answer would be the same today as it was then – OSHA didn’t get the respect they should have because they made worker safety seem trivial and they sent this message by only attaching a minimal penalty to a seemingly comprehensive OSHA inspection. My answer to my boss then was “if you want to get people to take OSHA seriously you have to first get their attention and to do that you have to penalize the heck out of them”.
In a memo issued on April 22, 2010 to the OSHA Regional Administrators from the new Assistant Secretary for Occupational Safety and Health, Dr. David Michaels, he laid out the basics of a plan for increasing the penalty structure that OSHA will use. The reason for the increase is that a panel determined that “penalties are too low to have an adequate deterrent effect”. No surprise here. There are a number of changes that will be made in the manner by which penalties are calculated, the way in which discounts may be used, the value of the discounts and the degree to which “bad” experience with OSHA will impact the size of a penalty, generally to the up side.
Two of the most significant announcements pertain to what can happen at the Area Office level when someone requests an informal conference as the result of an inspection. Up until now, the Area Director has always had the ability to “discount” penalties at that meeting, mostly in the interest of getting the company that was cited to “accept” the citation and go about fixing the violations included in it. It was routine that the Area Director could, and would, offer up discounts as high as 50% to strike a deal right there and then. Under the new guidelines, the Area Director will be authorized to offer only up to a 30% discount and any additional discount will need to be authorized by the Regional Administrator. The Area Director will also be authorized to offer up to an additional 20% discount to employers with less than 250 employees if “that employer agrees to retain an outside safety and health consultant”. If an Expedited Informal Settlement Agreement is being sought, the Area Director can offer up to a 30% discount with an additional 20% if the employer commits to hiring an outside safety and health consultant.
The memo is available at OSHA’s website www.osha.gov in the “Latest News” section in the upper right corner.
Correctly Monitoring for Worker Noise Exposure Under OSHA Guidelines
What kind of noise annoys an oyster?
Say that five times fast!
OSHA has ben busy conducting inspections in the last year and also increasing the dollar amount of the penalties they assess. The word is they also are less forgiving in negotiating reductions in penalties. One of their inspections we were notified of that bears significant interest is a sawmill where the total penalty the company was assessed was $293,000. Of that amount, $202,500 was for a handful of violations that the company had been cited for previously and either failed to correct or correct properly. There were a few machine guards removed but the bulk of the penalties were for lack of proper lockout tagout procedures and for NOT conducting audiograms (hearing tests) on workers exposed to noise. To avoid serious penalties for noise exposure not properly dealt with read on.
OSHA reissued their noise standard around 1980 and it became known as the “Hearing Conservation Standard”. The objective is to determine what levels of noise employees are exposed to and then to develop a Hearing Conservation Program around them to train and educate them, provide them with proper types of hearing protection and test their hearing on an annual basis to make sure it is not being affected. The OSHA standard is more comprehensive than this but these are the key points of the standard (law).
A huge point of contention centers around how people get placed into a Hearing Conservation program in the first place. Many companies rely on, in some cases, decades old tests to determine areas where employees are exposed to “too much noise”. Other companies use the provider of their audiometric testing to tell them who needs to be included in the program. Still others just designate areas of their company where it “sounds too loud” as areas where people need to be included in the program. There can be problems with all of these that can get you in a bind with OSHA.
Unless a worker is exposed to the exact same level of noise for a significant part of their work day, it is almost impossible for an untrained person to determine by using a sound level meter how much noise that person is exposed to. For people with varied tasks, who are in and out of different noisy areas during their workday, the only good way to get an accurate assessment of their noise exposure is throughout he use of a noise dosimeter. Here is the basic difference between a sound level meter and a noise dosimeter.
A sound level meter will measure what the noise level is right now, at this moment, in this place. If the person you want to assess moves around, the measurement that the sound level meter takes will go up and down as that person moves from quiet to noisy area and since the meter does not record the measurements it takes (in most cases), when you turn the meter off, there is no data saved. Determining exposure with a sound level meter can be done but it takes a mathemetician with a stop watch and a scientific calculator to get an accurate number. Many people will walk past a worker and take a reading that is over 90 decibels and assume, in many cases incorrectly, that worker to be exposed to enough noise that hey must be included in a Hearing Conservation program.
In almost 40 years of performing noise assessments, I have found that the only consistently reliable method for collecting noise exposure data is a use noise dosimeter worn for as close to a full work shift as possible to get an accurate determination of worker exposure to noise. In addition, the OSHA noise standard (1910.95(d)(1)(ii)) states that “When circumstances such as high worker mobility, significant variations in sound level, or a significant component of impulse noise make area monitoring generally inappropriate, the employer shall use representative personal sampling to comply with the monitoring requirements of this paragraph unless the employer can show that area sampling produces equivalent results (call the matemetician).
Dosimeters cost in excess of $1,000 and more like $1,5000 compared to sound level meters that can be bought for under $500. It takes a full 8 hours to measure one person with one noise dosimeter whereas someone can walk through a plant in a much shorter time with a sound level meter. Clearly it can be a lot less expensive to take noise readings with a sound level meter but unless that person is highly trained at interpreting the data it could be way off. Typically, sound levels miss some people who should be included in a program and significantly overestimate the number of people that need to be included, costing a lot more in the long run to conduct audiograms every year.
In addition, if you can not prove the actual exposure to noise while in your employ and a worker suffers a hearing loss from hunting or racing motorcycles, it is much harder to defend yourself in the face of a workers’ comp claim.
Lastly, the OSHA Hearing Conservation Standard calls for retesting every time there is a change in noise levels due to job assignment or equipment changes that may affect the overall exposure and the only way to accurately measure that is through the use of noise dosimeters. The standard says “Monitoring shall be repeated whenever a change in production, process, equipment or controls increases noise exposure to the extent that: Additional employees may be exposed at or above the action level or the attenuation provided by hearing protectors being used by employees may be rendered inadequate to meet the requirements of the standard”.
The point is, companies are required to determine who is exposed to noise above 85 dBa averaged over their workday, include them in a proper Hearing Conservation program which includes, among many other things, accurate exposure monitoring, conducted to determine who must participate in the program and that testing needs to be conducted regularly when conditions have changed (one Appendix to the standard suggests yearly or every other year) to determine who else needs to be included in the program and who also may be removed.
Is OSHA getting serious about safety?
We have seen first hand knowledge that the size of OSHA’s penalties are increasing locally and that it is harder to get reductions in penalties. We have seen this with clients of ours and in news releases we get from the Department of Labor.
One news release reported a penalty of $233,500 against a Long Island, New York retailer for blocked exits and other exit hazards. The company had been cited for similar violations at other retail locations in 2006 and 2007 hence the increased severity of the penalty for these repeated violations.
The obvious hazard here is the lack of accessible exits in the case of an emergency and this was the cause of the 146 fatalities in the infamous Triangle Shirtwaist Fire in New York City in 1911. There have been other such fire related tragedies since.
There have been numerous penalties issued for inspections in the last several months that are well in excess of $100,000 and are indicative of what appears to be an increasing use of significant penalties to get employers to pay more attention to the requirements of OSHA. Many of the penalties are for issues that were cited and never fixed. One noteworthy lumber company on OSHA’s web site was penalized almost $300,000 for repeated violations including noise exposure and lockout tagout violations that were never corrected. This is one of the largest penalties I have seen in almost 40 years for this type of violation and is a strong indication of OSHA’s intent to be taken seriously.
Maybe Some Green Shoots?
As the slow economy continues to drag on there may be signs of life out there!
We recently had meetings of the Boards that run our two self insurance groups and they represent about 275 New Hampshire companies. Many of the Board members noted that they have hired in the last 60 days, one company increasing their staff by over 10%. Several of the companies noted that the fourth quarter of 2009 was better than forecast and a few even noted that their 4th quarter was better than normal. One Board member reported they have been doing a lot of recent training for the sales reps that sell their product at retail and have been swamped by the number of new requests for quotes that have come in just in the last three weeks and he said his office staff can barely keep up.
One company we visited just before the New Year said their business had dropped by over 50% in October of 2008 and another 50% in November of 2009 causing significant downsizing. At the time of our visit, they were just about back to full employment.
Perhaps the best news comes from an Employment Agency we work with who employed 50 in November of 2009, now has 150 and is working seven days a week to keep up! They are seeing that increase across the board.
We are actually starting to hear more good than bad on the employment front and that will hopefully continue into 2010.
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