Protect Your Business from OSHA

http://www.municipalnets.com

Chapter 1.

Getting Started

1.1 Introduction

1.1.1 Font conventions used in this book

Normal font is used for material derived from OSHA publications and edited or commented by the author.

Helvetica is used to highlight material that was extracted verbatim from OSHA publications and it is being criticized or highlighted.

1.1.2 To summarize, digest and simplify is my objective

The objective of this book is to provide a digested, partially condensed and selective listing of the most important regulations that concern small businesses, facilities and other smaller workplaces. The guide will take you through the requirements step by step.

Where I got the information

I obtained much of the information from OSHA fact sheets, OSHA publications, and the Code of Federal Regulations. I have added commentaries by health and safety experts, with tips on the best way to comply. I made every effort to translate legalese into plain English. In some cases, I have critiqued the OSHA material when I noticed scientific errors and inconsistencies. However, this is just my opinion of the material and you will not be able to use this as a defense, nor does this mean that you don’t have to comply. These comments help guide you into debatable areas so you can prepare ahead of time with written documentation.

What businesses are covered?

The regulations I present concern every type of small businesses and facilities, small manufacturers, cottage industries and more. Very few are exempt from the regulations in the body of the text, so pay close attention. In the Chapter 9, I present an alphabetical listing of the most cited regulations in general industry and construction. This is a guide to help you find your way in the Code of Federal Regulations, which contains the complete text of all of the OSHA regulations.

As you will see later, minimum fines for non-compliance of simple regulations such, as the posting the requirements run into the thousands. It is worth your money and time to read and understand this guide, to prevent needless fines and the accompanying embarrassment that goes along with the fine, which proves irreparable to your reputation. You see even if your fine is small, your name gets on the OSHA computer and your violations become public information. In addition, they are empowered to lock out your business until changes are made to your procedures, so it is best to be prepared.

Think of the satisfaction you will have when an inspector comes to your door and finds that you actually have anticipated his or her every move and there is very little they can find to fine you! An educated small business owner or manager is a rare animal to an inspector, and they may just move on to someone else. Knowledge is power and in this case could save you.

1.1.3 Small Business, Regulator's New Target

Trying to run a small growing company today is getting more difficult than ever. However, to make things worse, small business is no longer being overlooked by the regulatory agencies. In fact, they seem to be on the prowl, claiming that most of the pollution and accidents are created by many small sources. Therefore, as we will see later in this book, even the smallest businesses are now the object of the regulator's dream of policing our entire industry. While large companies have made special deals and can afford advocacy groups to go to public hearings and exempt them from some of these regulations, the small businessperson is defenseless. From talking to OSHA government employees who perform inspections, it is difficult to know whom they will target for unannounced inspections. While businesses that reported an accident take priority, you will find they can come into a gas station, a large cleaning establishment, or any location that hires people and is involved in manufacturing, or assembly. Construction sites are always a priority.

1.1.4 Bureaucratic Information Indigestion!

OSHA is no stranger to bureaucratic overstatement. It seems that regulators are under the impression that there is a direct relationship between increased safety and the number of pages in the regulation. The mountain of paperwork that these regulations create certainly do promote a safer workplace and environment, as you are probably not going to have an accident while filling out a form or reading a 200 page regulation on asbestos control.

In an effort to create the world's safest workplace right here in America, they have come up with so many regulations, that it requires over 3 volumes of fine print or a CD ROM to hold just the type. The cost of hiring a dedicated Health & Safety professional is probably too high for most small businesses. This is why they often are fined when they are inspected. It is almost impossible for a small business to keep up and comply with so many regulations. This book aims at giving you an advantage.

1.1.5 Are these regulations driving businesses overseas?

A report was prepared by the proponents of NAFTA comparing our regulatory framework with that of Mexico. What follows are excerpts from this report. Certainly, this report compares regulations in Mexico only. It was interesting that Mexicans will fine both employer and an employee for not following safety rules.

1.1.6 Excerpt from NAFTA Report

Both countries have developed numerous regulations aimed at improving the general safety of workplace conditions and protecting the health of workers exposed to toxic or other hazardous substances. Mexican safety standards tend to be briefer, broader in their coverage, and more performance-oriented than U.S. standards, which often contain extensive specifications. Each system has regulations that address workplace buildings and locations; fire prevention and protection; tools; equipment operation, modification, and maintenance; handling, storage, and transport of flammable, combustible, explosive, corrosive, irritant, and toxic substances; handling, storage, and transport of other substances; personal protective equipment; and the workplace environment.

In the area of health standards, OSHA's regulations fall into two categories. The first includes the comprehensive Section 6(b) standards that set a permissible exposure limit (PEL) and establish a number of ancillary provisions (such as requirements for exposure monitoring, medical surveillance, training, hygiene facilities, respirators, and protective clothing). The Agency has developed 34 of these standards to date. Although Mexico has no set of regulations that are equivalent to OSHA's Section 6(b) health standards, many of the topics addressed in the ancillary provisions of these standards, e.g., personal protective equipment, medical surveillance, methods of compliance, and hazard communication, are addressed by Mexican regulations and standards. For example, Mexico's Instruction No. 9, published in 1989, addresses many of the topics covered by OSHA's Hazard Communication standard, including requirements for Material Safety Data Sheets, labeling, and worker training and information.

The second type of OSHA health standard is one that establishes a PEL for a commonly used industrial chemical but does not include the detailed ancillary provisions established in Section 6(b) standards. OSHA adopted most of its PELs in 1971 from the American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Values (TLVs) and the American National Standards Institute (ANSI) standards, and most of these limits were updated in 1989. In the construction and maritime industries, OSHA still enforces the PELs it originally adopted, although the Agency has recently proposed a standard that would extend the newly updated PELs to construction, maritime, and agricultural workplaces.

Mexico has adopted exposure limits for 562 hazardous substances, based on the 1983-1984 ACGIH TLVs. Most of the Mexican limits are identical to those currently being enforced by OSHA, but there are some differences in the limits in place in the two countries at any given time. For example, Mexico had more limits in effect, than OSHA did in the years between 1983 and 1989 (before OSHA's PELs for air contaminants in general industry were revised), but OSHA now has more limits than Mexico does for toxic substances used in general industry workplaces.

Summary

It is clear that both Mexico and the United States are aware of the importance of a multi-phase approach to occupational safety and health and that both consider worker training in hazard identification central to achieving the overall goals of their programs. The U.S. system provides support for an extensive consultation program, a voluntary protection program, training grants and classes, and an outreach program for employers and employees, and the Mexican system places primary reliance on the operation of mixed safety and hygiene commissions. In summary, both countries understand the importance of, and support, a variety of non-enforcement strategies designed to achieve the ultimate goal of an occupational safety and health program: a reduction in workplace injuries and illnesses.

Industries and services under federal jurisdiction in Mexico

Textiles, including apparel

Automotive, including mechanical and electrical

Electricity

Chemical, including pharmaceutical and medical

Cinematography

Cellulose and paper

Rubber

Mineral and vegetable oils

Sugar refineries

Food products, including those which are or will be crated, canned or packed

Mining

Bottled drinks which are or will be packed or crated

Metallurgy and the iron and steel industry, including mining, processing and Smelting of base minerals, as well as metallic iron and all forms of steel and products laminated with the same

Basic lumber, which includes production from sawmills and production of plywood

Glassworks, which includes glass that is used in the production of plain, smooth, or bottling glass

Hydrocarbons

Petrochemicals

Tobacco (state tobacco monopoly), which encompasses the processing and production of tobacco products

Cement

Lime quarries

Banking services

1.1.7 Value of Human Life and Injury

Whenever a new regulation is being proposed, OSHA publishes estimates of how many lives this regulation will save and how many injuries it will save. They also estimate the cost to industry of implementing this regulation. These figures are summarized and published in the Federal Register. The table below is based on figures published together with the new Asbestos regulation. It is interesting to note that the highest ratio of cost to industry per injury plus deaths saved is $380,000 for the process safety management regulation. It is also interesting to see how some regulations are more expensive than others to comply with. It looks like the permit required confined spaces regulation and the new fall protection regulation are the most cost effective to the industry. Also note that the Process Safety Management regulation will cost industry .88 billion dollars annually. Many challenge these regulations will ever save as many lives as estimated here.

VALUE OF HUMAN LIFE AND INJURY VARIES FOR EACH REGULATION ISSUED BY OSHA

¹According to OSHA, the fall protection regulation will save $200,000,000 or $12,000 approximately per injury prevented. Figures come from OSHA.

Chapter 2.

How OSHA Works

2.1 How OSHA Affects You

2.1.1 What is OSHA

The Occupational Safety and Health Act of 1970, signed on December 29, 1970 is designed:

To assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.

In administering the Act, the Labor Department's Occupational Safety and Health Administration (OSHA) issues standards and rules for safe and healthful working conditions, tools, equipment, facilities, and processes. OSHA also conducts workplace inspections to assure the standards are followed.

2.1.2 OSHA is Authorized to Conduct Inspections

Under the Occupational Safety and Health Act of 1970 (the Act), the Occupational Safety and Health Administration (OSHA) is authorized to conduct workplace inspections to determine whether employers are complying with standards issued by the Agency for safe and healthful workplaces. OSHA also enforces Section 5 (a)(1) of the Act, known as the General Duty Clause, which requires that every workingman and woman must be provided with a safe and healthful workplace.²

Update: 2003 – See Appendix 1 for the Enhanced Enforcement Policies memorandum. This policy applies only to states that have adopted it.

2.1.3 Who Sets the Standards

The Occupational Safety and Health Act of 1970 authorizes the Secretary of Labor through the Occupational Safety and Health Administration (OSHA) to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce through public rule making.

OSHA safety standards are designed to reduce on-the-job injuries; health standards to limit workers' risk of developing occupational disease. Most OSHA standards are horizontal - they cover hazards that exist in a wide variety of industries. These are compiled as the OSHA General Industry Standards. Vertical standards apply solely to one industry. OSHA has promulgated vertical standards for the construction, agriculture, and maritime sectors.

Some general industry standards apply to construction, agriculture, and maritime as well.

2.1.4 What Businesses Does OSHA Affect?

The Act and the standards issued by OSHA apply to every private employer with one or more employees - except those covered by other Federal legislation such as the Atomic Energy Act and the Coal Mine Safety Act. Federal OSHA covers about 56 million employees at 3.6 million workplaces; states and territories, which administer their own approved OSHA programs, cover an additional 37 million employees at 2.4 million worksites. This means that even the smallest businesses are affected by the regulation.

2.1.5 What is My Responsibility as an Employer?

Under the Act, employers have the general duty of providing their workers employment and a place of employment free from recognized hazards to safety and health, and must comply with OSHA standards.

2.1.6 What Happens if We Don't Comply?

When OSHA compliance officers discover hazards in establishments during inspections, employers may be issued citations listing alleged violations, and penalties and abatement periods may be proposed.

2.1.7 How Big Can Penalties Be?

A seven-fold increase in the maximum limits for OSHA civil monetary penalties was stipulated in the Budget Reconciliation Act passed by the 101st Congress.

Maximum Allowable Penalty for Willful or Repeated Violations

The maximum allowable penalty is now $70,000 for each willful or repeated violation; and $7,000 for each serious or other-than-serious violation as well as $7,000 for each day beyond a stated abatement date for failure to correct a violation.

Minimum Penalty for Willful or Repeated Violations

The amounts are ceilings -- not floors. However, in order to ensure that the most flagrant violators are in fact fined at an effective level, a minimum penalty of $5,000 for a willful violation of the OSHA Act was adopted.

The new penalty policy will be applicable to all citations issued as a result of inspections initiated after March 1, 1991, for violations occurring after Nov. 5, 1990 -- the effective date of the Budget Reconciliation Act.

The new policy also applies to those states with OSHA-approved state occupational safety and health programs, under the congressional direction that these State plans must be at least as effective as the national plan. The participating states are being given a reasonable period to implement the new penalty structure which takes into account the states' legislative calendars.

The basic penalty process will not change -- it still follows the criteria set forth in the Occupational Safety and Health Act, which is to determine penalties based on the gravity of the violation and the size, good faith and history of the employer. Gravity determines the base amount; the other factors determine appropriate reductions.

OSHA will also prosecute individuals whom they consider responsible for an accident with personal fines of up to $250,000.

Examples of Recently Publicized fines in December of 2006 Could you be next?

These figures are published monthly at the OSHA website. These are only some of the fines, but you can also search OSHA Fines on Google News and you’ll find something daily.

December 21 - [Region 1 News Release] - 2006 - 12/21/2006 - Plainville, Conn. Masonry Contractor Fined $220,000 by U.S. Labor Department's OSHA for Scaffold and Fall Hazards at Enfield Worksite

December 18 - [Region 1 News Release] - 2006 - 12/18/2006 - Fall Hazards at Newport, R.I., Jobsite Lead to $40,000 in Fines from U.S. Labor Department's OSHA for Fall River, Mass., Contractor

December 18 - [Region 5 News Release] - 2006 - 12/18/2006 - Kautza Excavating LLC Cited for Violations of Federal Trenching Regulations, Placing Workers in Danger

December 18 - [Region 1 News Release] - 2006 - 12/18/2006 - Plainville, Mass., Framing Contractor Faces $164,000 in Fines for Fall Hazards at Worksites in Newton and Danvers

December 15 - [Region 6 News Release] - 2006 - 12/15/2006 - U.S. Department of Labor's OSHA Cites Sarepta, La., Manufacturer Following Investigation of Worksite Fatality in June

December 15 - [Region 5 News Release] - 2006 - 12/15/2006 - Universal Form Clamp, Bellwood, Ill., Cited for Workplace Safety Violations following Federal Investigation into June Explosion

December 14 - [Region 5 News Release] - 2006 - 12/14/2006 - Nick Walters Takes Helm at Peoria, Ill., Office of U.S. Department of Labor's OSHA

December 14 - [Trade News Release] - 2006 - 12/14/2006 - OSHA Unveils New Hurricane Recovery and Response Work eMatrix

December 13 - [Region 10 News Release] - 2006 - 12/13/2006 - U.S. Department of Labor’s OSHA Again Cites Wheeler Logging Co. of White Swan, Wash., for Safety Violations

December 12 - [Region 1 News Release] - 2006 - 12/12/2006 - Alliance with U.S. Department of Labor's OSHA to Improve Safety and Health for Mass. Workers Who Make Concrete Landscaping Products

December 12 - [Region 6 News Release] - 2006 - 12/12/2006 - Entergy Operations Terrebonne Service Center Recognized for Safety and Health Management by U.S. Department of Labor's OSHA

December 12 - [Region 7 News Release] - 2006 - 12/12/2006 - U.S. Department of Labor's OSHA Joins the Centro Latino de Apoyo, Recursos y Oportunidades (CLARO) to Raise Safety and Health Awareness for Hispanic Employees

December 11 - [Region 4 News Release] - 2006 - 12/11/2006 - U.S. Labor Department's OSHA Cites Hueytown, Ala., Steel Erection Company Following Worker Fatality

December 11 - [Region 2 News Release] - 2006 - 12/11/2006 - U.S. Labor Department's OSHA Fines Orchard Park, N.Y., Masonry Contractor for Silica and Acid Hazards at Medaille College Jobsite

December 11 - [Region 4 News Release] - 2006 - 12/11/2006 - U.S. Labor Department’s OSHA, Georgia Tech and CDI Construction to Sign Safety Partnership at New Mall Site, in Augusta, Ga.

December 06 - [Region 10 News Release] - 2006 - 12/06/2006 - SafetyFest of the Great Northwest Dec. 11-15 in Boise

December 06 - [Region 1 News Release] - 2006 - 12/06/2006 - U.S. Labor Department's OSHA Fines North Reading, Mass., Contractor Following Electrical Accident at Kingston Jobsite

December 05 - [OSHA News Brief] - 2006 - 12/05/2006 - OSHA, Association for Sheet Metal and Air Conditioning Contractors Renew Alliance

December 05 - [Region 5 News Release] - 2006 - 12/05/2006 - U.S. Department of Labor's OSHA Welcomes Mentor, Ohio, Worksite into VPP Star Family for Outstanding Job Safety and Health Efforts

December 04 - [Region 5 News Release] - 2006 - 12/04/2006 - Safety Partnership to Help Protect Construction Workers on Argosy Casino Expansion Project in Lawrenceburg, Ind.

December 04 - [Region 5 News Release] - 2006 - 12/04/2006 - Safety Partnership to Help Protect Construction Workers on Health Alliance Hospital Expansion Project in West Chester, Ohio

December 04 - [Region 1 News Release] - 2006 - 12/04/2006 - U.S. Labor Department's OSHA Fines Dighton, Mass., Contractor $66,400 for Cave-In Hazard at Cape Cod Jobsite

2.1.8 May I Contest A Penalty?

As in the past, all penalty amounts are proposed penalties issued with the citation. The employer may contest the penalty amount as well as the citation within the statutory 15-day contest period. Thereafter, the penalty may be adjudicated by the independent Occupational Safety and Health Review Commission, or OSHA may negotiate with the employer to settle for a reduced penalty amount if this will lead to speedy abatement of the hazard.

2.1.9 Adjustment Factors for Small Businesses:

The size adjustment factor is as follows: For an employer with only one to 25 workers, the penalty will be reduced 60 percent: 26 to 100 workers, the reduction will be 40 percent; 101 to 250 workers, a 20 percent reduction; and more than 250 workers, there will be no reduction in the penalty.

There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide good workplace safety and health, and an additional 10 percent reduction if the employer has not been cited by OSHA for any serious, willful or repeat violations in the past three years.

In order to qualify for the full 25 percent good faith reduction, an employer must have a written and implemented safety and health program. It should follow the format such as given in OSHA's voluntary Safety and Health Management Guidelines (Federal Register, Vol. 54, No. 16, Jan 26, 1989, pp. 3904-3916) and that includes programs required under the OSHA standards, such as Hazard Communication, Lockout/Tagout or safety and health programs for construction required in CFR 29 1926.20. (These are given later in this book.)

2.1.10 Penalties for Serious Violations

The typical range of proposed penalties for serious violations, before adjustment factors are applied, will be $1,500 to $5,000, although the Regional Administrator may propose up to $7,000 for a serious violation when warranted.

A serious violation is defined as one in which there is substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.

Serious violations will be categorized in terms of severity -- high, medium or low - and the probability of an injury or illness occurring -- greater or lesser.

Base penalties for serious violations will be assessed as follows:

Penalties for serious violations that are classified as high in both severity and greater in probability will only be adjusted for size and history.

Other-Than-Serious Violations

If an employer is cited for an other-than-serious violation, which has a low probability of resulting in an injury or illness, there will be no proposed penalty. However, the violation must still be corrected. If the other-than-serious violation has a greater probability of resulting in an injury or illness, then a base penalty of $1,000 will be used, to which appropriate adjustment factors will be applied.

The OSHA Regional Administrator may use a base penalty of up to $7,000 if circumstances warrant.

Regulatory Violations

Regulatory violations involve violations of posting, injury and illness reporting and recordkeeping requirements, and not telling employees about advance notice of an inspection. OSHA will be applying adjustments only for the size and history of the establishments.

Violations of Posting Requirements

Here are the base penalties, before adjustments, to be proposed for posting requirement violations: OSHA notice, $1,000; annual summary, $1,000; and failure to post citations, $3,000.

Recordkeeping and Reporting Violations

Base reporting and recordkeeping penalties are as follows: Failure to maintain OSHA 200 and OSHA 101 forms, $1,000; failure to report a fatality or catastrophe within 48 hours [recently changed to 8 hours!] , $5,000 (with a provision that the OSHA Regional Administrator could adjust that up to $7,000, in exceptional circumstances); denying access to records, $1,000; and not telling employees about advance notice of an inspection, $2,000

Accident reporting requirements now 8 hours

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued a final rule in April requiring employers to orally report any occupational fatality or catastrophe involving in-patient hospitalizations of three or more workers within 8 hours to your state agency. If this is a late event and the State office is not available, we recommend you call your Federal agency and report it. These reports shall be recorded but for your protection, you should record the conversation or fax a confirmation as soon as possible. A toll free hotline is available for reporting safety and health emergencies: 1-800-321 OSHA

Willful Violations:

In the case of willful serious violations, the initial proposed penalty has to be between $5,000 and $70,000. OSHA calculates the penalty for the underlying serious violation, adjusts it for size and history and multiplies it by 7. The multiplier of 7 can be adjusted upward or down at the OSHA Regional Administrator's discretion, if circumstances warrant. The minimum willful serious penalty is $5,000.

Willful violations are those committed with an intentional disregard of, or plain indifference to, the requirements of the OSHA Act and regulations.

Repeat Violations:

A repeat violation is a violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found.

Repeat violations will only be adjusted for size, and the adjusted penalties will then be multiplied by 2, 5, or 10.

The multiplier for small employers -- 250 employees or fewer -- is 2 for the first instance of a repeat violation, and 5 for the second repeat. However, the OSHA Regional Administrator has the authority to use a multiplication factor of up to 10 on a case involving a repeat violation by a small employer to achieve the necessary deterrent effect.

The multiplier for large employers -- 250 or more employees -- is 5 for the first instance of repeat violation, and 10 for the second repeat. If the initial violation was other-than-serious, without a penalty being assessed, then the penalty will be $200 for the first repetition of that violation, $500 for the second repeat, and $1,000 for the third repeat.

Failure to Abate

Failure to correct a prior violation within the prescribed abatement period could result in a penalty for each day the violation continues beyond the abatement date. In failure to abate cases the daily penalty will be equal to the amount of the initial penalty (up to $7,000) with an adjustment for size only.

This failure to abate penalty may be assessed for a maximum of 30 days by the OSHA Area office.

Partial Abatement

In cases of partial abatement of the violation, the OSHA Regional Administrator has authority to reduce the penalty by 25 percent to 75 percent. If the failure to abate is more than 30 days, it may be referred to the OSHA national office in Washington where a determination may be made to assess a daily penalty beyond the initial 30 days.

2.1.11 May I contest inspections?

Employers may contest these before the independent Occupational Safety and Health Review Commission - a three-member board appointed by the President - which presumes the employer to be free of violations and puts the burden of proof on OSHA.

2.1.12 Employee Responsibilities and Rights

Employees must comply with standards and with job safety and health rules and regulations applying to their own conduct. They or their representatives have the right to:

File a complaint with OSHA requesting a workplace inspection; complainants' names may be withheld from the employer.

To be advised (on request) of OSHA actions regarding their complaint and to have n informal review made of any OSHA decision not to inspect.

To attend the employer's informal conference with OSHA to discuss any issues raised by an inspection, citation, and notice of proposed penalty or abatement period.

2.1.13 Do I have a voice in setting standards?

Many of OSHA's standards are not new. Business has operated under them for years as national consensus standards -- those agreed upon by members of groups such as the American National Standards Institute and the National Fire Protection Association -- or federal standards established under other laws, such as the Public Contracts Act. In developing new or amended standards, OSHA invites full participation by employers and employees and gives their views full consideration before issuing final standards. Detailed information on employer and employee rights and responsibilities under the Occupational Safety and Health Act is available from any of OSHA's 95 field offices (found under U.S. Government, Department of Labor telephone listings).

2.1.14 How OSHA Standards Come About?

The impetus to develop a new safety or health standard can come from a variety of sources: OSHA's own initiative; the U.S. Congress; information from the Department of Health and Human Services' National Institute for Occupational Safety and Health (NIOSH); Environmental Protection Agency's Toxic Substances Control Act (TOSCA) referral; public petitions; or requests from OSHA advisory committees.

Standard Setting Process

Standard setting