Kevin Ian Schmidt

OSHA Employee Rights

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On December 29, 1970, President Nixon signed the OSH Act. This Act created OSHA, the agency, which formally came into being on April 28, 1971. With the creation of OSHA, for the first time, all employers in the United States had the legal responsibility to provide a safe and healthful workplace for employees. And, there were now uniform regulations that applied to all workplaces.

The mission of OSHA is to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.

Some of the things OSHA does to carry out its mission are:

  • developing job safety and health standards and enforcing them through worksite inspections
  • providing training programs and educational materials to increase knowledge about occupational safety and health
  • providing on-site safety and health consultation services for small business
  • promoting the Safety and Health Achievement Program (SHARP) to recognized exemplary employers
  • offering cooperative programs under which employers work cooperatively with OSHA
  • partnering with employers under the OSHA Strategic Partnerships and Alliances (OSP) program
  • recognizing employers who have demonstrated excellence under the Voluntary Protection Program (VPP)

What Rights Do You Have Under OSHA?

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This poster is FREE from OSHA, many languages available, go here

With OSHA you have the right to:

  • safe and healthful workplace
  • be free from retaliation for exercising safety and health rights
  • raise a safety or health concern with your employer or OSHA, or report a work-related injury or illness, without being retaliated against
  • receive information and training on job hazards, including all hazardous substances in your workplace
  • request an OSHA inspection of your workplace if you believe there are unsafe or unhealthy conditions
  • refuse to do a task if you believe it is unsafe or unhealthful
  • participate (or have your representative participate) in an OSHA inspection and speak in private to the inspector
  • file a complaint with OSHA within 30 days (by phone, online or by mail) if you have been retaliated against for using your rights
  • see any OSHA citations issued to your employer
  • request copies of your medical records, tests that measure hazards in the workplace, and the workplace injury and illness log

Employer Responsibilities Under OSHA

  • Provide employees a workplace free from recognized hazards. It is illegal to retaliate against an employee for using any of their rights under the law, including raising a health and safety concern with you or with OSHA, or reporting a work-related injury or illness.
  • Comply with all applicable OSHA standards.
  • Report to OSHA all work-related fatalities within 8 hours, and all inpatient hospitalizations, amputations and losses of an eye within 24 hours.
  • Provide required training to all workers in a language and vocabulary they can understand.
  • Prominently display this poster in the workplace.
  • Post OSHA citations at or near the place of the alleged violations.
Learn more about Employer Responsibilities Under OSHA

Your Right to a Safe and Healthful Workplace

OSHA was created to provide workers the right to a safe and healthful workplace. Let’s look at what the Occupational Safety and Health Act of 1970 (OSH Act) says about employer and employee duties.

OSH Act of 1970 Section 5(a) Duties.

(a) Each employer —

  • (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
  • (2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

Employer obligations. Section 5(a) says employers must:

  • furnish safe employment (work, jobs) and a safe place of employment (the workplace, worksite);
  • provide workplaces that are free of hazards that are known or should have been known by the employer;
  • provide workplaces that are free of hazards that could cause death or serious physical harm to employees; and
  • comply with occupational safety and health standards promulgated under this Act.

Employee obligations. The section says employees must:

  • comply with OSHA standards, and
  • comply with employer rules, regulations, and orders which are applicable to his own actions and conduct.

Right to Raise Safety Concerns

You may bring up safety and health concerns in the workplace to your employer without fear of discharge or discrimination, as long as the complaint is made in good faith. Check out the video: an Oregon OSHA compliance officer just happened to be on a construction site. Would you, as an employee raise the same concerns as that raised by the Oregon OSHA inspector. If you have concerns, make sure you tell your safety committee, supervisor, or safety manager.

OSHA regulations protect workers who raise concerns to their employer or to OSHA about unsafe or unhealthful conditions in the workplace. You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you have exercised any right afforded to you under the OSH Act.

If you become aware of a hazard where you’re working, be sure to notify your immediate supervisor. If you are not comfortable doing that for some reason, contact the safety manager or a member your safety committee.

 

Right to Refuse Dangerous Work

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint.

If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. OSHA cannot enforce union contracts that give employees the right to refuse to work.

Your right to refuse to do a task is protected if ALL of the following four conditions are met:

  1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
  2. You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and
  3. A reasonable person would agree that there is a real danger of death or serious injury; and
  4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

If the above conditions are met, you should take the following steps:

  • Ask your employer to correct the hazard, or to assign other work;
  • Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
  • Remain at the worksite until ordered to leave by your employer.

Right to Training

Conduct classroom and “hands-on” training.

You have a right to get training from your employer on a variety of health and safety hazards and standards that your employer must follow.

We’ve already discussed the training required under OSHA’s Hazard Communication (Right to Know) standard. Other required training includes chemical hazards, equipment hazards, noise, confined spaces, fall hazards in construction, personal protective equipment, and a variety of other subjects.

The training must be in a language and vocabulary workers can understand.

It is a good idea to keep a record of all safety and health training. Documentation demonstrates employer due diligence and can also supply an answer to one of the first questions OSHA will ask if they conduct an inspection or accident investigation: “Did the employee receive adequate training to do the job?” Remember, as far as OSHA is concerned, if it isn’t in writing, it didn’t get done.

For more information on on OSHA’s training requirements download Publication 2254

Your Right to File a Complaint

You, and your representative, have a right to file a confidential complaint with OSHA if you believe a violation of a safety or health standard that threatens physical harm, or an imminent danger situation, exists in the workplace. Important points to remember include:

  • The complaint will be formalized in writing, and signed by you or your representative.
  • You must set forth reasonable and specific grounds for the notice of complaint.
  • You may request that your name, or that of your representative not be revealed to the employer.
  • OSHA will notify the employer about the complaint, and conduct a special inspection if there are reasonable grounds to believe a violation or danger exists.
  • You have the right to find out OSHA’s action on the complaint and request a review if an inspection is not made.

You can file a complaint online at OSHA’s website, in writing or by telephone to the nearest OSHA area office. You may also call the office and speak with an OSHA compliance officer about a hazard, violation, or the process for filing a complaint.

 

Right to Participate in OSHA Inspections

During an OSHA inspection, you or your representative has the following rights:

  • Have a representative of employees, such as the safety steward of a labor organization, go along on the inspection;
  • Talk privately with the inspector; and
  • Take part in meetings with the inspector before and after the inspection.

When there is no authorized employee representative, the OSHA inspector must talk confidentially with a reasonable number of workers during the inspection.

Workers are encouraged to:

  • Point out hazards;
  • Describe injuries illnesses or near misses that resulted from these hazards and describe any concerns about a safety or health issue;
  • Discuss past worker complaints about hazards; and
  • Inform the inspector of working conditions that are not normal during the inspection.
  • Find out about inspection results, abatement measures and may object to dates set for violation to be corrected

Right to be Free From Retaliation

Workers have the right to be free from retaliation for exercising safety and health rights called “protected activities.”

  • Workers have a right to seek safety and health on the job without fear of punishment.
  • This right is spelled out in Section 11(c) of the OSH Act.
  • Workers have 30 days to contact OSHA if they feel they have been punished for exercising their safety and health rights.

Protected activities: You may file a complaint with OSHA if your employer retaliates against you by taking unfavorable personnel action because you engaged in protected activity relating to workplace safety or health. Examples of protected activities include complaints about the following:

  • workplace safety and health
  • asbestos in schools
  • cargo containers
  • airlines and commercial motor carrier
  • consumer products food safety and environmental issues
  • financial reform and health insurance reform, and securities laws
  • motor vehicle safety and public transportation
  • nuclear, pipeline, railroad, and maritime safety

Examples of retaliatory actions by your employer may include:

  • applying or issuing a policy which provides for an unfavorable personnel action due to activity protected by a whistleblower law enforced by OSHA
  • blacklisting
  • demoting
  • denying overtime or promotion
  • disciplining
  • denying benefits
  • failing to hire or rehire
  • firing or laying off
  • intimidation
  • making threats
  • reassignment to a less desirable position, including one adversely affecting prospects for promotion
  • reducing pay or hours
  • suspension

How OSHA Determines Whether Retaliation Took Place

The investigation must reveal that:

  • The employee engaged in protected activity;
  • The employer knew about or suspected the protected activity;
  • The employer took an adverse action; and
  • The protected activity motivated or contributed to the adverse action.
Check out OSHA’s Whistleblower Factsheet

If the evidence supports the employee’s allegation and a settlement cannot be reached, OSHA will generally issue an order, which the employer may contest, requiring the employer to reinstate the employee, pay back wages, restore benefits, and other possible remedies to make the employee whole.

be aware that the loss of Chevron deference can impact your rights as an employee as well, to learn more, check out my post about OSHA and the loss of Chevron Deference.

PIT and the loss of Chevron Deference

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Here is the next in my series where I examine the effect the loss of Chevron deference could have on OSHA standards and workplace safety, this week we are reviewing OSHA 1910.178 Powered Industrial Trucks.

If you missed any of my previous articles, here they are:

The Occupational Safety and Health Administration (OSHA) standard 1910.178 serves as a critical foundation for ensuring the safe operation of powered industrial trucks (PITs), commonly known as forklifts. While the standard offers a comprehensive framework with specific regulations, it also contains areas of ambiguity that necessitate further interpretation.

This inherent tension between specificity and ambiguity can be challenging. On the one hand, detailed regulations provide clear guidelines for employers and employees alike, minimizing confusion and promoting consistent safety practices. However, overly prescriptive rules might not account for the diverse situations encountered in real-world workplaces.

OSHA addresses these ambiguities through “letters of interpretation.” These non-mandatory documents offer OSHA’s official clarification on specific points within the standard. While they hold significant weight, they are not legally binding, and with the loss of Chevron Deference the OSHA letters of interpretation aren’t even given the weight of being expert

Here are some of the main ambiguities and the specific clarifications provided:

Ambiguities of OSHA Powered Industrial Truck Standard

  • Definition of a Powered Industrial Truck
    • The scope of what constitutes a powered industrial truck (PIT) can be particularly unclear, especially given the continuous evolution of technologies and the introduction of various types of machinery. Traditionally, PITs include vehicles like forklifts, pallet jacks, and order pickers, which are powered by electric motors or internal combustion engines. However, as technology advances, new equipment emerges that does not fit neatly into these conventional categories, creating ambiguity about what machinery falls under the OSHA 1910.178 standard.
    • For instance, the development of automated guided vehicles (AGVs) and autonomous mobile robots (AMRs) used in warehouses and manufacturing settings presents a challenge. These machines often perform similar functions to traditional PITs but operate using advanced robotics and automation technologies. Determining whether these newer types of equipment are subject to the same regulations as traditional PITs can be complex and unclear.
    • Moreover, hybrid machinery that combines features of PITs with other types of industrial equipment adds another layer of complexity. These hybrid machines might include elements of forklifts along with other functionalities, leading to confusion about their classification and the specific safety standards that should apply.
  • Operator Training and Certification
      • The specifics of what constitutes adequate training for powered industrial truck operators, who qualifies as a trainer, and how often retraining should occur can be quite ambiguous. This ambiguity poses significant challenges for employers striving to comply with OSHA standards and ensure the safety of their employees.
      • Firstly, “adequate training” involves formal instruction, practical training, and performance evaluation, but the exact content and depth are not clearly defined. Employers may struggle with determining necessary topics, training duration, and the balance between theory and practice, leading to inconsistent training quality.
      • Secondly, identifying who qualifies as a trainer is another area of uncertainty. OSHA requires trainers to have the “knowledge, training, and experience” to train and evaluate operators, but these qualifications are not explicitly detailed, causing confusion about the necessary credentials, certifications, or experience levels.
      • Thirdly, the frequency of retraining is ambiguous. While OSHA mandates retraining under certain conditions, such as unsafe operation or accidents, it does not specify a regular interval, leading to either neglecting necessary retraining or conducting it too frequently.
Check Out: Important Components of a Powered Equipment Program
  • Maintenance and Inspection
    • The requirements for the frequency and extent of inspections and maintenance routines are not always explicitly clear. While OSHA mandates that powered industrial trucks (PITs) must be regularly inspected to ensure their safety and proper functioning, the standard does not provide specific guidelines on how often these inspections should occur or the detailed processes involved in maintaining the equipment. This lack of explicit detail can lead to uncertainty among employers about how frequently they need to perform inspections and what constitutes a thorough maintenance routine.
    • Employers may find it challenging to determine the appropriate intervals for inspections, whether daily, weekly, or monthly, based on the usage and condition of the equipment. Additionally, the standard does not always specify what aspects of the PIT should be included in these inspections or how comprehensive the maintenance procedures should be. This ambiguity can result in variations in how different organizations approach equipment maintenance, potentially impacting overall safety and compliance.
  • Modifications and Attachments
    • The standard does not always specify which types of modifications or attachments are permissible without impacting the safe operation of powered industrial trucks (PITs). While OSHA regulations provide general guidelines for the safe operation of PITs, they lack detailed criteria on what modifications or attachments can be added without compromising safety. This ambiguity can create uncertainty for employers about which alterations are acceptable and which may pose risks.
    • For example, modifications such as changing the truck’s load capacity or adding new attachments like extended forks or platforms can potentially affect the stability and operational characteristics of the PIT. However, the standard does not always provide clear guidance on how to evaluate these modifications or ensure they do not negatively impact the truck’s safety features.
    • Employers may struggle to determine whether modifications require manufacturer approval or if additional safety measures are necessary to accommodate new attachments. This uncertainty can lead to inconsistent practices and potential safety hazards if modifications are not properly evaluated and implemented.

Clarifications for PIT from OSHA Letters of Interpretation

  1. Definition of a Powered Industrial Truck
    • OSHA has clarified that PITs include forklifts, pallet jacks, order pickers, and other specialized industrial trucks powered by electric motors or internal combustion engines. This definition helps employers understand the range of equipment covered by the standard.
  2. Operator Training and Certification
    • OSHA requires that training be site-specific and include both formal instruction and practical training. Trainers must have the necessary knowledge, training, and experience to train operators and evaluate their competence. Refresher training is required when there is a demonstrated need, such as after an incident or when new equipment is introduced.
  3. Maintenance and Inspection
    • OSHA’s letters of interpretation specify that PITs must be inspected daily or at the beginning of each shift if they are used continuously. Maintenance records should be kept, and any identified issues must be addressed before the PIT is used again.
  4. Modifications and Attachments
    • OSHA has clarified that modifications and additions that affect the capacity and safe operation of the PIT must not be performed without the manufacturer’s prior written approval. This includes the use of attachments such as forks, platforms, or other add-ons that could impact stability and handling.

Examples of Clarifications from Letters of Interpretation

  1. Training Clarification
    • A letter clarified that retraining is required if the operator is observed driving in an unsafe manner, involved in an accident or near-miss, or assigned to drive a different type of truck. Additionally, changes in the workplace that affect safe operation necessitate retraining.
  2. Inspection and Maintenance Clarification
    • Clarification was provided that daily checks should include tire condition, fluid levels, the functioning of brakes and steering, and the condition of the forks. Documentation of these checks, while not explicitly required, is highly recommended.
  3. Attachments Clarification
    • OSHA specified that any attachment used must be included in the training program, and operators must understand how the attachment affects the truck’s operation and handling characteristics.

By addressing these ambiguities through letters of interpretation, OSHA provides crucial clarity and guidance on the requirements for powered industrial trucks (PITs). These interpretations help bridge gaps in the standard, offering detailed explanations and specific examples that assist employers and employees in understanding their responsibilities and compliance obligations.

This enhanced clarity helps organizations navigate complex aspects of PIT regulations, such as permissible modifications, inspection frequency, and proper maintenance routines. By offering concrete guidance, OSHA’s letters of interpretation facilitate safer and more consistent practices across various industries.

Employers can more effectively implement safety measures, ensure proper equipment use, and adhere to maintenance protocols, while employees benefit from a clearer understanding of safe operation procedures. Overall, these clarifications promote a more reliable and uniform application of safety standards, contributing to a safer working environment and reducing the risk of accidents and compliance issues related to PITs.

LoTo and the Loss of Chevron Deference

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Here is the next in my series where I examine the effect the loss of Chevron deference could have on OSHA standards and workplace safety, this week we are reviewing Lockout/Tagout.

If you missed any of my previous articles, here they are:

The whole series is centered around understanding what it means to workplace safety to lose Chevron deference, and the risk to workers from workplaces that don’t care about employees.

OSHA standard 1910.147, known as the Control of Hazardous Energy (Lockout/Tagout) standard, outlines measures for controlling hazardous energy during the servicing and maintenance of machines and equipment. Despite its importance in preventing workplace injuries, certain aspects of this standard can be ambiguous, necessitating clarifications through OSHA letters of interpretation.

Ambiguities in OSHA 1910.147 – Lockout/Tagout

  • Scope of the Standard:
    • Ambiguity often arises regarding which specific activities and types of equipment are covered by the standard. While OSHA 1910.147 clearly applies to servicing and maintenance operations, the line between what constitutes normal production operations and what activities require lockout/tagout procedures can be less well-defined. This distinction can create confusion for employers trying to determine when and how to apply the lockout/tagout requirements. For example, routine adjustments or minor repairs performed during regular production might not seem to fit the criteria for lockout/tagout, yet these tasks could still pose significant risks if proper energy control measures are not implemented. Similarly, the standard’s application to various types of equipment and machinery—especially those involving complex or new technologies—may not always be immediately apparent. This uncertainty can lead to inconsistent application of safety practices, potentially compromising worker safety and increasing the risk of accidents. Clearer guidance is needed to help employers accurately identify which operations necessitate lockout/tagout procedures and ensure that all potentially hazardous situations are appropriately addressed.
  • Definition of “Authorized Employee”:
    • The term “authorized employee” in OSHA 1910.147 refers to individuals who are responsible for applying lockout or tagout devices to machines during servicing and maintenance activities. However, there can be significant confusion surrounding the specific qualifications and training necessary for an employee to be deemed “authorized.” The standard outlines that an authorized employee must be trained in the recognition of hazardous energy sources, the methods and means for energy isolation, and the importance of preventing accidental energy release. Yet, the exact criteria for what constitutes sufficient training and qualifications can be vague. Employers may find it challenging to determine the depth and scope of training required to meet these standards, leading to inconsistent practices and potential gaps in safety. This ambiguity can result in some employees being inadequately prepared to handle energy control procedures, which could undermine the effectiveness of the lockout/tagout program and increase the risk of workplace accidents. Clearer definitions and more detailed guidance on the training and qualifications for authorized employees would help ensure that all individuals responsible for energy control are adequately prepared and capable of performing their duties safely.
  • Group Lockout/Tagout Procedures:
    • The standard acknowledges the use of group lockout/tagout procedures but offers limited guidance on how to implement these procedures effectively, which can result in a range of interpretations and practices. While the concept of group lockout/tagout is intended to address situations where multiple employees are involved in servicing or maintaining equipment, the lack of detailed instructions leaves room for ambiguity. This limited guidance means that employers may interpret the requirements differently, leading to inconsistent application of safety measures across different workplaces.
    • For example, the standard does not specify the precise methods for coordinating lockout/tagout among multiple workers, nor does it provide clear criteria for ensuring that all individuals involved in a group lockout/tagout procedure are adequately protected. Consequently, practices can vary widely, with some organizations implementing robust group procedures while others may apply less comprehensive measures. This inconsistency can lead to safety gaps, where the intended protection for all workers is not uniformly achieved. To ensure effective implementation and uniformity in safety practices, more detailed guidance and examples are needed on how to conduct group lockout/tagout procedures, ensuring that all team members are effectively safeguarded during maintenance and servicing activities.
  • Periodic Inspections:
    • OSHA mandates that periodic inspections of energy control procedures be conducted to ensure ongoing compliance with lockout/tagout requirements. However, the standard does not provide specific details regarding the frequency or detailed procedures for these inspections. This lack of precision leaves employers with a degree of uncertainty about how to fulfill their obligations effectively.
    • Employers are left to interpret the requirements and decide on their own how often these inspections should occur and what exactly they should entail. This ambiguity can result in varied practices across different workplaces, with some employers possibly conducting inspections too infrequently or inadequately, which could lead to lapses in safety. The absence of clear guidelines means that employers must make judgment calls on the appropriate frequency and thoroughness of inspections, which can impact their ability to maintain consistent and effective energy control procedures. To address these challenges and enhance compliance, more explicit guidance from OSHA on the frequency and scope of periodic inspections would be beneficial, ensuring that all employers can consistently meet safety standards and effectively protect their workers.
  • Energy Isolation Devices:
    • The standard uses the term “energy isolation device” to refer to equipment designed to isolate hazardous energy sources and prevent accidental energy release. However, the criteria for determining what qualifies as an adequate energy isolation device can be ambiguous, especially in the context of new and emerging technologies.
    • The standard does not provide a comprehensive list or detailed specifications for what constitutes an acceptable energy isolation device, leading to potential confusion among employers. This lack of clarity can make it challenging for organizations to select devices that meet the necessary safety standards, particularly when dealing with innovative or complex machinery that may not have been explicitly addressed by existing guidelines.
    • As technology advances, new types of energy isolation devices are continually developed, and their suitability for compliance with OSHA’s standards may not be immediately clear. This evolving landscape further complicates the process of ensuring that all energy isolation devices used in the workplace are both effective and compliant with regulatory requirements. To address these challenges, more precise criteria and updated guidance on what constitutes an adequate energy isolation device are needed, helping employers make informed decisions and maintain robust safety practices in the face of technological advancements.

Clarifications from OSHA Letters of Interpretation

OSHA has issued numerous letters of interpretation to address these ambiguities and provide clearer guidance to employers and employees. Here are some key clarifications:

  • Scope of the Standard:
    • OSHA has provided clarification that activities such as minor tool changes and adjustments, which are routine, repetitive, and integral to the use of equipment for production, do not fall under the requirements of the lockout/tagout standard, provided they are performed using alternative measures that offer effective protection. These routine activities are considered part of normal operations and, therefore, exempt from lockout/tagout requirements as long as the alternative measures in place are sufficient to protect workers from hazardous energy.
  • Authorized Employee:
    • OSHA has issued detailed clarifications on the training requirements for authorized employees responsible for lockout/tagout procedures. Authorized employees must receive comprehensive, job-specific training covering the energy control procedures they will use. This training must include recognizing hazardous energy sources such as electrical, mechanical, hydraulic, pneumatic, chemical, and thermal. Employees need to understand the specific hazards associated with each type of energy source.
    • Additionally, the training must cover methods and means for effective energy isolation and control. This includes detailed instruction on shutting down equipment, isolating energy sources, and applying lockout or tagout devices to prevent hazardous energy release. Employees must also know how to test and verify effective energy isolation before commencing maintenance or servicing work.
    • Since the standard is this brief: 1910.147(c)(7)(i)(A)-Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation and control.
  • Group Lockout/Tagout Procedures:
    • OSHA has provided detailed clarification for group lockout/tagout procedures to ensure the safety of all employees involved in servicing or maintenance activities. According to these guidelines, each authorized employee must apply a personal lockout or tagout device to a group lockout mechanism. This requirement ensures that each worker maintains individual control over the energy isolation, thereby enhancing personal accountability and safety.
  • Periodic Inspections:
    • OSHA has specified that periodic inspections must be conducted at least annually to ensure that the energy control procedures are being properly followed. The inspection must include a review of each authorized employee’s responsibilities under the energy control procedure.
  • Energy Isolation Devices:
    • OSHA has provided examples of acceptable energy isolation devices, such as manually operated circuit breakers, disconnect switches, and line valves. These devices must be capable of isolating the energy source and preventing the release of hazardous energy.

 

OSHA’s letters of interpretation are essential in addressing these ambiguities. These letters provide detailed explanations and practical examples that clarify the intent and application of the standard. For instance, they can specify what constitutes an adequate energy isolation device, what training is necessary for an employee to be considered authorized, and how to implement group lockout/tagout procedures correctly. By offering this guidance, OSHA helps employers and employees navigate the complexities of the standard, ensuring they understand how to meet the requirements.

Through these clarifications, OSHA enables workplaces to implement lockout/tagout procedures more effectively, thereby enhancing safety and compliance. Clear and specific guidance helps to eliminate uncertainties, allowing for consistent and proper application of safety measures across different industries and situations. As a result, employees are better protected from hazardous energy during servicing and maintenance activities, which reduces the risk of accidents and injuries.

In summary, OSHA 1910.147’s ambiguities regarding its scope, definitions, procedures, and requirements necessitate detailed clarification through OSHA’s letters of interpretation. These interpretations play a vital role in helping employers and employees understand and correctly apply the standard, ultimately promoting safer work environments and ensuring regulatory compliance.

Every Organization Needs a Safety Plan

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If you have never had a serious accident in your company headquarters or meeting place, count yourself lucky. In the United States, we live in a litigious society, and if someone is injured while away from home, that injured person may very well file a lawsuit against the company owning or running a building or piece of equipment. Even meeting or event organizers can be at risk. Insurance companies and courts look kindlier on organizations that have a written safety plan. Having a plan in place shows you have considered potential safety hazards, and are doing your best to follow all regulations, educate all participants, and thus prevent an accident.

If you do not have a plan, or if you have one that is poorly written or if nobody in your organization knows a plan exists, you are at greater risk of lawsuit or victims being awarded larger settlements in court. In many situations, such as on building sites, safety plans are mandated by the authorities. In any case, having a written safety plan is always a good idea and knowing the laws that pertain to your work location are a must.

The goals of a safety plan are basically two-fold: to explain the responsibilities of management and employees (including all legal regulations that must be obeyed); and to describe all safety rules that pertain to the site, the activity, and the audience in question.

So, what should go into a safety plan? First, check federal and local statutes to determine what your legal responsibilities are.

Next, consider the site where you are meeting or doing business. You should always know where to find an accurate blueprint or map in case you or the authorities need one. Then think about all the activities that take normally place on that site and all the people, vehicles, and machinery that may be present, and imagine the accidents that could happen there. Unless you work for Homeland Security or a specialty security firm, you probably do not need to plan for terrorist attacks or aircraft falling out of the sky; your due diligence is simply to address the most common emergency situations for your site. If you are leasing a space for business purposes or even for meetings or other events, be sure to check with the building owner or management to review their safety plan.

Check Out: Basics of a Written Safety Plan

Inside any building, you must always consider the possibility of fire. So, every safety plan should explain how to evacuate the building, include a map of all exits, and contain an explanation of what should happen in the case of a fire. Will an alarm sound? Will overhead sprinklers come on? Will the fire department automatically be notified by the alarm system, or do you need to specifically assign someone to call them? Are there fire doors that should be closed? The plan should include a diagram marking the location of fire extinguishers as well as instructions on how to use them (or better yet, make sure those instructions are attached to each extinguisher). If you keep different types of fire extinguishers for different types of fires, the safety plan should explain that. Does your organization keep chemicals or pressurized containers that could explode or release noxious gasses during a fire? Be sure to note those, too.

Another situation to consider in a building safety plan is electrical failure. If all the power suddenly goes out, what should people do? Will emergency lights or backup generators automatically come on, or must someone turn them on? Will phones and smoke alarms work? How about security systems? You should provide a plan of what to do in the case of a sudden blackout. You may also need to provide instructions about procedures to follow when the power comes back on. Will machinery and computers require a startup procedure or need to be reset in some way? Do you have mission critical equipment that must not fail in a power outage such as medical devices?

Are you situated in an earthquake zone? If yes, you need to account for that possibility, instructing people to move outside or get under desks and tables if they can’t safely get to doorways. Often earthquakes will cause electrical failures or water and gas leaks, so you need to include instructions on what to do about all those problems, too.

Check Out: Is Your Company Prepared for an Emergency?

Your type of business or activity will determine other potential dangers that you need to address in a safety plan. Do your personnel work with hazardous chemicals? You need to identify each chemical, state the possible hazards and spell out the appropriate precautions for working with it. (The use of hazardous chemicals generally requires posting SDS sheets that contain all this information.)

Do your employees or volunteers operate potentially dangerous equipment? Your plan should discuss how to turn each piece of equipment on and off and describe any procedures and warnings needed to work safely with it. These two issues are especially important on any construction site, even if it’s only a small remodel job. Other important issues to address in a safety plan are hazards associated with earthmoving, such as ditch cave-ins or accidentally cutting electrical, gas, or water lines. The way that materials are stored can be hazardous, too – each year workers suffer crush injuries or die after being buried under hundreds of pounds of plasterboard or lumber that slid from a stack.

Is vehicle traffic a safety consideration? For those working on construction sites, it certainly can be. How about pedestrians? You need to consider everything you need to do to keep not only your employees safe, but also any passers-by who may wander through a hazardous area.

Construction sites may also need to deal with noise hazards and issues with dust of all kinds.

If you work in extreme climates, you may need to include instructions for preventing and dealing with hypothermia or heat exhaustion.

Security is another area nobody likes to think about, but all managers and organizers should. What should happen if an armed intruder comes into your area? Of course, someone should call the police, but are there also doors that need to be locked or checked? Are there places employees should hide? What do you want an employee to do if she discovers an unlocked door or suspects suspicious activity after normal business hours?

Everyone who is routinely present on your site also needs to know what to do in the case of medical emergency. If you have defibrillators available, make sure everyone knows where they are and how to use them. Do you have first aid kits on hand? Be sure your plan specifies their locations, too.

All staff should know the numbers to call in the case of emergency, as well as what to say. Keep in mind that people often cannot think clearly during an emergency. Make sure the emergency number (even if it’s always 9-1-1) and address of your building or site is posted where it can easily be seen (having a quick reference card in every room can help). If there are supervisors or insurance personnel who must be notified, be sure to list their contact information, too.

Creating a safety plan might sound daunting, but you will find all sorts of safety information available on the internet and more in the hands of authorities; you can plug all the appropriate information into your own plan and customize it to fit your situation.

After you’ve created your plan, don’t just file it away in a cabinet. Your employees (or members or volunteers) need to learn about what’s in the plan. You may need to hold periodic training sessions, so everyone concerned can learn how to work safely together. Safety is everyone’s responsibility.

View and Download the Expanded Employee Safety Manual below:

 

Expanded Employee Safety Manual – Example

 

Machine Guarding and the loss of Chevron Deference

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Here is the next in my series where I examine the effect the loss of Chevron deference could have on OSHA standards and workplace safety, this week we are reviewing Machine Guarding.

If you missed it, here is my article on PPE and the loss of Chevron Deference. The whole series is centered around understanding what it means to workplace safety to lose Chevron deference, and the risk to workers from workplaces that don’t care about employees.

 

OSHA standard 1910.212 pertains to general requirements for all machines, specifically machine guarding. This standard aims to protect employees from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips, and sparks. However, certain aspects of this standard are ambiguous and have required clarifications through OSHA letters of interpretation. Here are some of the common areas of ambiguity and the issues that frequently require interpretation:

  • General Nature of the Requirements:
    • The standard establishes broad requirements for machine guarding but fails to provide specific details on how to implement these requirements across different machines and operational contexts. This lack of precision can create significant uncertainty for employers trying to determine what specific guarding methods are considered compliant. Without clear, detailed guidance, businesses may find it challenging to apply the general principles of the standard to their unique machinery and operational circumstances. This ambiguity can lead to varied interpretations and implementations of guarding measures, potentially resulting in inconsistent safety practices and compliance issues across different workplaces. As a result, employers may struggle to ensure that their machine guarding methods meet OSHA’s expectations, potentially putting workers at risk, and OSHA would not have a recourse to address the hazard in the workplace outside of a lengthy court proceeding.
  • Definition of “Point of Operation”:
    • The term “point of operation” denotes the specific area on a machine where work is performed on the material being processed. However, the exact boundaries and characteristics of this area are not clearly defined, which can lead to varying interpretations. This ambiguity can make it difficult for employers to determine precisely what constitutes the point of operation for different types of machinery. As a result, there may be inconsistencies in how this critical area is identified and guarded, leading to potential safety risks. Without a clear, universally accepted definition, businesses might implement differing safety measures, potentially resulting in non-compliance with OSHA standards and varying levels of protection for workers. This lack of clarity necessitates further guidance to ensure that employers can effectively and uniformly identify and guard the point of operation to maintain a safe working environment.
  • Criteria for Guard Effectiveness:
    • OSHA 1910.212 mandates that guards be “affixed to the machine where possible” and designed to prevent employees from having any part of their body in the danger zone during operation. However, the standard does not provide precise criteria for what constitutes an effective guard, leading to significant ambiguity. This vagueness can result in uncertainty for employers trying to comply with the regulation, as they must determine on their own what types of guards will sufficiently protect employees from the hazards associated with specific machines. The absence of clear, detailed guidelines means that interpretations can vary widely, potentially leading to inconsistent implementations of guarding measures across different workplaces. This lack of specificity not only complicates the task of ensuring compliance but also poses a risk to worker safety, as improperly guarded machines may fail to provide the necessary protection. Clearer criteria are needed to guide employers in selecting and installing effective machine guards, thereby enhancing workplace safety and regulatory compliance.
  • Variety of Machines and Hazards:
    • Given the wide range of machinery covered under this standard, it can be challenging to determine the appropriate type of guarding for specific machines and hazards. This diversity necessitates a more tailored approach, which the standard itself does not provide.
Check Out: Machine Guarding Basics

Clarifications from OSHA Letters of Interpretation

OSHA has issued several letters of interpretation to address these ambiguities. Here are some key points clarified through these letters:

  • Specific Guarding Requirements:
    • OSHA has provided more detailed guidance on acceptable guarding methods for different types of machinery. For example, certain letters explain how to guard specific machines like press brakes, conveyors, and woodworking machinery.
  • Point of Operation Guarding:
    • Clarifications have been made regarding what constitutes adequate point of operation guarding. OSHA has emphasized that guards must not only prevent contact with the danger zone but also be designed and installed in a way that does not create additional hazards.
  • Guard Effectiveness Criteria:
    • OSHA has outlined criteria for what makes a guard effective, such as being secure, preventing access to the danger zone, and being constructed of durable materials. The interpretation letters often provide examples of compliant guards and non-compliant ones.
  • Alternative Guarding Methods:
    • In cases where standard guarding is not feasible, OSHA letters have discussed acceptable alternative methods, such as the use of electronic safety devices, two-hand controls, and safety distance measures. These alternatives must provide equivalent protection to traditional guards.
  • Maintenance and Adjustment of Guards:
    • OSHA has clarified that guards must be maintained in good condition and adjusted appropriately to ensure continued protection. This includes regular inspections and repairs as needed.

 

The Supreme Court’s decision to overturn Chevron deference casts a shadow over OSHA’s ability to enforce machine guarding regulations. While the core standards will likely remain, the interpretation and enforcement process faces significant hurdles. Increased litigation, conflicting court rulings, and the potential for a legislative overhaul of machine guarding regulations are all on the horizon.

This new landscape presents challenges for both employers and employees. Employers will need to closely monitor legal developments and ensure their machine guarding practices comply with the strictest interpretations of existing regulations.

The path forward for machine guarding regulations remains uncertain. However, one thing is clear: the importance of safeguarding workers from machinery hazards hasn’t diminished. Stakeholders across the board – employers, employees, advocacy groups, and lawmakers – will need to work together to navigate this new environment and ensure the continued safety of America’s

Emergency Action Plans Explained

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How would your employees escape from the workplace in an emergency?

Do they know where all the exits are in case their first choice is too crowded?

Are you sure the doors will be unlocked and the exit route, such as a hallway, will not be blocked during a fire, explosion, or other crisis?

Knowing the answers to these questions could keep your employees safe during an emergency.

An emergency action plan (EAP) is a written document required by OSHA standard 1910.38. The purpose of an EAP is to facilitate and organize employer and employee actions during workplace emergencies.

Well-developed emergency plans and proper employee training (such that employees understand their roles and responsibilities within the plan) will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies. A poorly prepared plan, likely will lead to a disorganized evacuation or emergency response, resulting in confusion, injury, and property damage.

Check out the Safety Whitepaper, Developing an Emergency Action Program here

Emergency action plans must be written. However, for smaller companies, the plan does not need to be written and may be communicated orally if there are 10 or fewer employees. It is recommended that all employers have a written emergency action plan for optimal safety.

Check out the Post: Are Emergency Action Plans Really Necessary?

OSHA Requirements for Emergency Action Plans

At a minimum, the plan must include but is not limited to the following elements:

  • Means of reporting fires and other emergencies,
  • Evacuation procedures and emergency escape route assignments,
  • Procedures for employees who remain to operate critical plant operations before they evacuate,
  • Accounting for all employees after an emergency evacuation has been completed,
  • Rescue and medical duties for employees performing them, and
  • Names or job titles of persons who can be contacted.

Although they are not specifically required by OSHA, employers may find it helpful to include the following in the EAP:

  • A description of the alarm system to be used to notify employees (including disabled employees) to evacuate and/or take other actions. The alarms used for different actions should be distinctive and might include horn blasts, sirens, or even public address systems.
  • The site of an alternative communications center to be used in the event of a fire or explosion.
  • A secure on- or offsite location to store originals or duplicate copies of accounting records, legal documents, your employees’ emergency contact lists, and other essential records.

Evacuation policies, procedures, and escape route assignments are put into place so that employees understand who is authorized to order an evacuation, under what conditions an evacuation would be necessary, how to evacuate, and what routes to take. Exit diagrams are typically used to identify the escape routes to be followed by employees from each specific facility location.

Evacuation procedures also often describe actions employees should take before and while evacuating such as shutting windows, turning off equipment, and closing doors behind them.

Under the typical EAP, the employer will expect all employees to evacuate in an emergency. However, sometimes a critical decision may need to be made when planning – whether employees should be trained and responsible for extinguishing small (controllable) fires.

A disorganized evacuation can result in confusion, injury, and property damage. When developing the emergency action plan, it is important to determine the following:

  • conditions under which an evacuation would be necessary.
  • conditions under which it may be better to shelter-in-place.
  • a clear chain of command and designation of the person in your business authorized to order an evacuation or shutdown.
  • specific evacuation procedures, including routes and exits.
  • specific evacuation procedures for high-rise buildings for employers and employees.
  • procedures for assisting visitors and employees to evacuate, particularly those with disabilities or who do not speak English.
  • designation of what, if any, employees will remain after the evacuation alarm to shut down critical operations or perform other duties before evacuating.
  • a means of accounting for employees after an evacuation.
  • special equipment for employees.
  • appropriate respirators.

During development and implementation of a draft plan, think about all possible emergency situations and evaluate the workplace to see if it complies with OSHA’s emergency standards.

Exit Routes

Normally, a workplace must have at least two exit routes to permit prompt evacuation of employees and other building occupants during an emergency. More than two exits are required if the number of employees, size of the building, or arrangement of the workplace will not allow employees to evacuate safely. Exit routes must be located as far away from each other as practical in case one exit is blocked by fire or smoke.

Exception: If the number of employees, the size of the building, its occupancy, or the arrangement of the workplace allows all employees to evacuate safely during an emergency, one exit route is permitted.

Most employers create maps from floor diagrams with arrows that designate the exit route assignments. These maps should include locations of exits, assembly points, and equipment (such as fire extinguishers, first aid kits, spill kits) that may be needed in an emergency. Exit routes should be:

  • clearly marked and well lit,
  • wide enough to accommodate the number of evacuating personnel,
  • unobstructed and clear of debris at all times, and
  • unlikely to expose evacuating personnel to additional hazards.

When preparing drawings that show evacuation routes and exits, post them prominently for all employees to see. See OSHA’s Interactive Floorplan Demonstration.

Accounting for Employees

Procedures to account for employees after the evacuation to ensure that everyone got out may include designating employees to sweep areas, checking offices and restrooms before being the last to leave a workplace or conducting a roll call in the assembly area. Evacuation wardens can be helpful in accounting for employees. To ensure the fastest, most accurate accounting of employees, consider including these steps in the EAP:

  • Designate assembly areas or areas Assembly areas, both inside and outside the workplace, are the locations where employees gather after evacuating.
    • Internal assembly areas within the building are often referred to as “areas of refuge.” Make sure the assembly area has sufficient space to accommodate all employees.
    • Exterior assembly areas, used when the building must be partially or completely evacuated, are typically located in parking lots or other open areas away from busy streets. Try and designate assembly areas so that employees will be up-wind of the building.
  • Take a head count after the evacuation. Accounting for all employees following an evacuation is critical. Identify the names and last known locations of anyone not accounted for and pass them to the official in charge.
  • Assembly area design. When designating an assembly area, consider (and try to minimize) the possibility of employees interfering with rescue operations.
  • Account for others. Establish a method for accounting for non-employees such as suppliers and customers.
  • Additional evacuation. Establish procedures for further evacuation in case the incident expands. This may consist of sending employees home by normal means or providing them with transportation to an offsite location.

PPE and the loss of Chevron Deference

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Here is the next in my series where I examine the effect the loss of Chevron deference could have on OSHA standards and workplace safety, this week we are reviewing PPE.

OSHA 1910.132, which covers personal protective equipment (PPE), often contains ambiguities that necessitate further clarification. Here are some of the common areas of ambiguity and the issues that frequently require interpretation:

  • Assessment of Workplace Hazards:
    • Employers are required to perform a hazard assessment to determine the necessity of personal protective equipment (PPE), yet the standard does not offer detailed criteria or methodologies for carrying out these assessments. This lack of specificity can create considerable uncertainty regarding what qualifies as a sufficient or adequate hazard assessment. Without clear guidelines on how to systematically evaluate workplace hazards, employers may struggle to ensure that their assessments are thorough and compliant. This ambiguity can lead to inconsistencies in how hazard assessments are performed, potentially resulting in varying levels of protection and compliance across different workplaces. Consequently, employers might find it challenging to ascertain whether their assessment processes meet the required standards, which could impact their ability to effectively safeguard employees and adhere to regulatory requirements.
    • Here you can read the 1910 statute on hazard assessments, and without Chevron deference, you can see how there is much left to interpretation.
Check Out: PPE Hazard Assessment and Certification
  • Selection of Appropriate PPE:
    • The standard stipulates that personal protective equipment (PPE) must be “appropriate” for the tasks and hazards identified in the workplace. However, the term “appropriate” can be somewhat vague and open to interpretation, leading to uncertainty about what constitutes the right type of PPE in various situations. This ambiguity can give rise to questions regarding the specific type of PPE required, as well as its material, durability, and overall suitability for the identified hazards. Employers may find it challenging to determine which PPE will offer adequate protection under the specific conditions they face, potentially leading to difficulties in ensuring that employees are properly safeguarded. The lack of precise criteria for what qualifies as appropriate PPE can result in inconsistencies in protective measures and compliance practices, making it harder to achieve uniform safety standards across different workplaces.
    • Just looking at 1910.138 PPE: hand protection, look at how vague the standard is, then when you factor in  1910.132(b)

      Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

      Check Out: PPE Selection and Usage Guide
  • Training Requirements:
    • Employers are required to provide training to employees on the use, maintenance, and limitations of personal protective equipment (PPE). However, the standard does not specify the extent or depth of this training, leading to a lack of clarity about how comprehensive the training should be and the frequency with which it should be conducted. This ambiguity can result in confusion for employers about how to structure their training programs to meet regulatory requirements effectively. As a consequence, there may be variations in the quality and thoroughness of the training provided, which could impact employees’ understanding of how to properly use and maintain their PPE. Without clear guidelines, employers might struggle to ensure that their training is sufficiently detailed and regularly updated, potentially affecting the overall safety and compliance within the workplace.
    • Check out how 1910.132(f) is written,  it provides basic guidelines on PPE training requirements but not that training can be delivered. Would a basic printed sheet, hung on an information board suffice? That would be up to both sides in a case presenting their experts to discuss, then a judge or jury making a decision.
    • In 2010 OSHA issued a memorandum to clarify OSHA’s stance on delivering a training in the language understood by employees, since then OSHA has treated this as guidance for when to view training as not proper, which means  without Chevron deference, this could mean workplaces are no longer required to provide training in a language employees understand. While banning English-only rules in the workplace are codified with 29 C.F.R. § 1606.7(b) this ruling allows exemptions for “promotion of safety”, which could be argued in a court as related to safety training.
Check Out: The Basics of PPE Training
  • Maintenance and Replacement of PPE:
    • The standard mandates that personal protective equipment (PPE) must be kept in a sanitary and reliable condition. However, it falls short of providing specific guidelines on maintenance procedures and replacement schedules for PPE. This lack of detailed direction can create significant uncertainty for employers regarding the appropriate methods and timelines for cleaning, repairing, or replacing PPE. Without clear instructions, employers may face challenges in establishing effective maintenance routines, which could lead to variations in how PPE is managed across different workplaces. This ambiguity can result in inconsistent practices, potentially compromising the effectiveness of PPE and the safety of employees. As a result, employers might struggle to ensure that PPE remains in optimal condition and continues to provide adequate protection as intended.

 

  • Employer and Employee Responsibilities:
    • There is often confusion regarding the division of responsibilities between employers and employees when it comes to personal protective equipment (PPE). Specifically, questions can arise about who is responsible for various aspects of PPE management, such as providing the equipment, ensuring its proper use, and maintaining it. For instance, employers generally bear the responsibility of providing PPE at no cost to employees, but there may be uncertainty about whether they are also responsible for training employees on the correct use of PPE and for maintaining the equipment in good condition. On the other hand, employees are expected to use the PPE as intended and to report any issues with it. This delineation of responsibilities can sometimes be unclear, leading to potential gaps in compliance and safety. The lack of explicit guidance on these responsibilities can result in inconsistent practices and confusion about who should address specific issues related to PPE, ultimately affecting the overall effectiveness of the safety measures in place.
    • The OSHA order that mandated PPE be paid for by employers can from an OSHA final rule determination in 2008, which is not a codified law, so without Chevron deference, the determination of who pays for PPE could be determined by a judge, leading to employees buying PPE which may not be up to proper standard or worse employers may use this as a way to increase profits by adding margin to the cost. Now 1910.132(b)  states “Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.”, so the employer would be required to assure it’s adequacy, which again leaves open interpretation as to what that means. I was once employed in a workplace that said “cut gloves must be worn”, would that be accepted as “adequate” by a judge?

 

  • Enforcement and Compliance:
    • Employers might find themselves uncertain about how OSHA will enforce particular provisions of the standard and what constitutes adequate evidence of compliance during inspections. This uncertainty arises because the application and enforcement of OSHA regulations can vary based on interpretation and the specifics of each case. Employers may struggle to understand the precise requirements for demonstrating compliance, such as the documentation or practices OSHA expects to see during an inspection. This can lead to confusion about how to prepare for and manage inspections, potentially impacting their ability to meet regulatory expectations fully. As a result, employers may be concerned about whether they have the right systems in place and whether their efforts to comply with the standards will be recognized as sufficient by OSHA inspectors. This ambiguity can affect how effectively employers can align their practices with regulatory requirements and prepare for potential audits or enforcement actions.
Check Out: OSHA and the loss of Chevron Deference

As you can see, the loss of Chevron deference introduces significant uncertainty in the enforcement of PPE regulations in the workplace. Without Chevron deference, courts are no longer obligated to defer to OSHA’s interpretations of ambiguous statutory provisions. This change can result in inconsistent judicial decisions, making it harder for employers to understand and comply with PPE requirements. Consequently, this legal ambiguity can lead to workplaces becoming unsafe, as employers may struggle to determine the appropriate PPE measures needed to protect their employees. Furthermore, until more precise and stricter legislation is enacted to clarify these requirements, there may be limited remedies available to bring unsafe workplaces into compliance. This gap in regulatory clarity could potentially compromise worker safety and hinder effective enforcement of PPE standards.

OSHA and the loss of Chevron Deference

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In a significant departure from precedent, the Supreme Court overturned the Chevron doctrine in a 6-3 decision. Established in 1984’s Chevron v. Natural Resources Defense Council, the doctrine instructed courts to defer to reasonable agency interpretations of ambiguous laws. Chief Justice John Roberts’ 35-page opinion deemed the Chevron doctrine “fundamentally misguided” and rejected its application in future cases.

“Today, the court places a tombstone on Chevron no one can miss,” wrote Justice Neil Gorsuch, one of the court’s most conservative members.

By ending Chevron deference, the US Supreme Court has significantly reduced the power of federal agencies, including the Environmental Protection Agency and Occupational Safety and Health Administration. The repercussions of this landmark decision will be felt across the federal government, but I am best qualified to talk on the impacts to OSHA. Let’s examine how we arrived to a place where OSHA and the EPA may be cutting protections.

What was the Supreme Court case about?

While “Chevron deference” might sound like a chess strategy, it refers to the landmark Supreme Court ruling in Chevron v. Natural Resources Defense Council. In 1984, the court ruled that judges should defer to federal agencies when interpreting ambiguous parts of statutes.

The idea was that if Congress passed a law with unclear provisions or gaps, it was up to the agency to fill in those gaps. In practice, this allowed federal agencies like the Environmental Protection Agency to create and implement rules without the fear of prolonged legal battles. OSHA letters of interpretation are a great example of this sort of clarification and decision making.

Then, in 2020, the case of herring fishermen emerged. That year, the Trump administration mandated that fishermen cover the costs of taking federal monitors on their fishing trips. The vessels had no choice; it was illegal to fish without these monitors on board to oversee the Atlantic fishery, spanning from Maine to North Carolina.

Commercial fishing companies, supported by conservative and corporate groups including billionaire Charles Koch, sued in two separate cases. In one case, a federal judge ruled that the National Marine Fisheries Service could legally impose the costs under Chevron deference.

Impact on OSHA Letters of Interpretation:

With Chevron overturned it will have significant implications for OSHA’s letters of interpretation and agency interpretations more broadly This could reduce their effectiveness as a tool for clarifying regulatory requirements and providing compliance assistance. Let’s look at some of the other issues around the OSHA letters of interpretations:

  1. Reduced Judicial Deference:
    • Without Chevron deference, courts would no longer be required to defer to OSHA’s interpretations of ambiguous statutory provisions. Instead, courts would take on the responsibility of independently interpreting the statutory language. This change could lead to a variety of judicial conclusions that may differ significantly from OSHA’s established interpretations. Consequently, this new approach could create inconsistencies in how workplace safety regulations are applied and enforced, potentially leading to a more fragmented and unpredictable regulatory environment.
  2. Increased Legal Uncertainty:
    • If courts are no longer deferring to OSHA’s interpretations, there could be increased variability in the application and enforcement of OSHA standards. This shift in judicial approach could result in differing interpretations of the same regulatory provisions across various jurisdictions. Consequently, employers and employees may face significant legal uncertainty as they attempt to understand and comply with OSHA regulations. Without consistent guidance from the courts, it may become more challenging to determine the correct course of action to ensure compliance with workplace safety standards, potentially leading to a patchwork of interpretations and enforcement practices that vary from one court to another.
  3. More Frequent Legal Challenges:
    • Employers and other stakeholders might be more inclined to challenge OSHA’s interpretations in court, knowing that courts are no longer required to defer to OSHA’s expertise. This newfound judicial independence could embolden parties to dispute OSHA’s regulatory decisions more frequently, leading to a substantial increase in litigation. As a result, there is a greater likelihood of courts issuing rulings that overturn OSHA’s interpretations. This potential surge in legal challenges and subsequent court decisions could undermine OSHA’s regulatory authority and create an environment of uncertainty and inconsistency regarding the enforcement of workplace safety standards. The increased litigation might also strain judicial resources and prolong the resolution of disputes, further complicating compliance efforts for employers and leaving employees in a state of flux regarding their safety protections.

This shift introduces increased legal uncertainty for both employers and employees as they navigate the complexities of compliance without the previously clear guidance provided by OSHA’s interpretations. The likelihood of more frequent and prolonged litigation rises, as stakeholders may challenge OSHA’s decisions in court more readily, knowing that courts are no longer bound to defer to the agency’s interpretations.

Moreover, this decision signals a possible shift towards more detailed and prescriptive legislation from Congress. With agencies like OSHA facing limitations on their interpretive authority, there may be greater pressure on legislators to draft clearer, more specific laws to ensure that regulatory intentions are unambiguous and enforceable without the need for agency interpretation.

Overall, the removal of Chevron deference marks a significant change in the regulatory environment, potentially reshaping how workplace safety laws are created, interpreted, and enforced in the future.

The Business of Safety

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There are two methods often used to assess business risks, quantitative and qualitative. According to research, most businesses utilize the quantitative assessment model in order to identify and categorize probable problems with their business practices. A quantitative risk assessment approach means that numbers are used to calculate and predict hazards. Each hazard is then prioritized according to the level of their risk value. The higher the risk value, the higher it is in the priority totem pole.

On the other hand, a qualitative risk assessment uses characteristics of each scenario to determine a course of action. Unlike the quantitative approach, the qualitative methodology of risk assessment can be subjective and require more work than the former.

Crunching Numbers of Risk

To determine the value of risk (R), two critical components—loss (L) and probability (p)—are calculated to arrive at a final numerical value. The component loss (L) represents the amount of loss incurred in the event of an accident, encompassing everything from financial costs to physical damages and injuries. The probability (p) component refers to the likelihood or chance of a specific scenario occurring. Multiplying these two values (L and p) provides the product (R), which represents an objective assessment of potential risks.

Quantitative risk assessments are particularly useful in complex situations, where they can offer a clear, numerical representation of risk. These situations often involve severe consequences, such as the potential loss of life, damage to machinery, and significant environmental impacts. By using quantitative methods, organizations can make more informed decisions about risk management and mitigation strategies, ensuring that all potential hazards are thoroughly evaluated and addressed.

Check Out: How to Conduct a Risk Assessment

Success and Losses Based on Tested and Quantified Statistics

Critics of this practice have expressed concerns about its reductive and purely numerical nature. Notable figures such as Barry Commoner and Bryan Wynne have criticized its reductive approach, arguing that it fails to capture the nuanced differentiation available in qualitative risk assessments. These detractors maintain that numerical values cannot fully describe hazard scenarios as effectively because they often omit the human element, which is crucial for understanding the broader context and implications of risks.

However, while these criticisms have merit, qualitative risk assessments can be time-consuming and costly. In contrast, quantitative methods provide a more efficient way to evaluate potential hazards in the workplace, offering sufficient breadth and definition through statistical analysis. Quantitative assessments are particularly beneficial in scenarios where clear patterns and historical data exist, as they can provide a more objective and streamlined evaluation of risks. This objectivity often makes quantitative analysis superior to the more tedious and subjective nature of qualitative assessments, particularly in environments where swift and clear decision-making is essential.

Qualitative Risk Analysis

The purpose of qualitative risk analysis is to identify which risks require detailed analysis and to determine the necessary controls and actions based on the risks’ effects and impacts on objectives. This approach is particularly useful for prioritizing risks and developing an initial response strategy. Two simple and well-known methods are commonly applied in qualitative risk analysis:

1. Keep It Super Simple (KISS)

The KISS method is ideal for small or narrowly scoped projects where unnecessary complexity should be avoided. This approach is especially beneficial for teams that lack maturity or extensive experience in assessing risk. The KISS method involves a straightforward, one-dimensional technique for rating risk on a basic scale, such as:

  • Very High
  • High
  • Medium
  • Low
  • Very Low

By keeping the assessment simple, teams can quickly identify and categorize risks without becoming overwhelmed by intricate details, ensuring that even less experienced teams can effectively participate in the risk management process.

2. Probability/Impact Analysis

The Probability/Impact method is suited for larger, more complex projects and issues, involving teams with experience in risk assessments. This two-dimensional technique rates risks based on two key factors:

  • Probability: The likelihood that a risk will occur.
  • Impact: The consequence or effect of the risk, typically related to its impact on schedule, cost, scope, and quality.

In this method, both probability and impact are rated using a numerical scale, such as 1 to 10 or 1 to 5. The risk score is then calculated by multiplying the probability rating by the impact rating. For example, a risk with a probability of 3 (on a scale of 1 to 5) and an impact of 4 would have a risk score of 12.

This method allows for a more nuanced assessment of risks, enabling teams to prioritize risks based on their potential severity and likelihood. It helps ensure that resources are allocated to address the most significant risks first, improving the overall effectiveness of the risk management process.

Benefits of Qualitative Risk Analysis

By employing these methods, qualitative risk analysis provides several advantages:

  • Prioritization: Helps identify which risks need immediate attention and which can be monitored or addressed later.
  • Simplicity and Accessibility: The KISS method makes risk assessment accessible to all team members, regardless of their experience level.
  • Comprehensive Evaluation: The Probability/Impact method offers a detailed evaluation, suitable for complex projects with multiple stakeholders.

Overall, qualitative risk analysis is a vital tool in the risk management toolkit, offering both simplicity for straightforward projects and depth for more complex scenarios. It ensures that risks are systematically identified, assessed, and managed, aligning with project objectives and organizational goals.

Quantitative Risk Analysis

Quantitative risk analysis is an advanced method used to evaluate high-priority and high-impact risks by assigning numerical or quantitative ratings. This approach develops a probabilistic assessment of business-related issues, translating the probability and impact of risks into measurable quantities. Its application is more limited and depends on factors such as the type of project, project risk, and the availability of relevant data for analysis.

Purpose and Benefits

The primary purpose of quantitative risk analysis is to provide a detailed, measurable evaluation of risks. This method:

  • Quantifies Outcomes: It quantifies the possible outcomes for business issues and assesses the probability of achieving specific business objectives.
  • Supports Decision-Making: It provides a quantitative approach to making decisions in the face of uncertainty.
  • Sets Realistic Targets: It creates realistic and achievable cost, schedule, or scope targets.

Applications

Quantitative risk analysis is particularly useful in several contexts, including:

  • Schedule and Budget Control: Essential for business situations that require meticulous schedule and budget control planning.
  • Complex Projects: Ideal for large, complex issues or projects that require critical go/no-go decisions.
  • Management Insights: Valuable for business processes or issues where upper management demands detailed information about the probability of on-time and within-budget completion.

Advantages

The advantages of using quantitative risk analysis are numerous:

  • Objectivity: Provides an objective assessment of risks.
  • Management Tool: Serves as a powerful selling tool to management by clearly illustrating risks and benefits.
  • Cost/Benefit Projection: Allows for direct projection of cost and benefit, aiding in financial planning.
  • Flexibility: Can be tailored to meet the needs of specific situations and industries.
  • Reduced Disagreement: Less likely to provoke disagreements during management reviews, as it is based on quantifiable data.
  • Fact-Based Analysis: Often derived from irrefutable facts, enhancing the credibility of the analysis.

In summary, quantitative risk analysis is a robust tool for evaluating risks in a structured, numerical manner. It supports informed decision-making, realistic target setting, and provides a clear, objective view of potential outcomes, making it indispensable for complex projects and situations where precise risk assessment is crucial.

Minimizing Loss

Quantitative risk assessments are not absolute, despite their seemingly definitive nature. The quantities attributed to loss (L) and probability (p) are not entirely fixed or certain, and as these values increase, there is a higher risk of arriving at inaccurate conclusions. However, with accurate data and careful calculation, predicting potential outcomes and associated costs is a risk worth taking for any business.

The quantitative method assigns a numerical value to signify “risk,” yet it is important to recognize that not all hazards are equivalent. Different scenarios can yield the same risk value; for example, a scenario with a low loss and high probability versus one with a high loss and low probability. In such cases, businesses must conduct a feasibility study to determine which hazard requires immediate action. Typically, businesses prioritize scenarios where the overall loss is minimal, ensuring that resources are allocated efficiently to mitigate risks.

Quantitative risk assessments provide a clear and tangible representation of risk. By assigning numerical values to potential hazards, solutions can also be quantified. This approach allows business owners and investors to rely less on trial-and-error methods, which could incur additional losses if unsuccessful. Using equations to determine the probability of failure and success offers a structured and data-driven approach to risk management, facilitating more informed decision-making and potentially reducing the overall impact of risks.

Low-Cost High-Reward Investment

Implementing safety precautions at work should be at an overall low-cost and high-reward situation. By using numerical data to determine which course of action is the most beneficial, business can get ahead of the risk game and actually win. In this case winning means minimal losses and increase in business profitability.

Check out the slideshow of the Business of Safety

The Business of Safety

 

Corrective Actions

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It’s important to divide your recommended corrective actions into the categories below:

  1. Immediate or short-term corrective actions to eliminate or reduce the hazardous conditions and/or unsafe behaviors related to the accident.
  2. Long-term system improvements to create or revise existing safety policies, programs, plans, processes, procedures and practices identified as missing or inadequate in the investigation.

 

High Priority Strategies that Eliminate the Hazards

1. Elimination: Totally eliminate the hazard. Why is this control strategy our top priority and considered by OSHA to be most effective? This control strategy has the potential to completely remove the hazard. We’re somehow changing a thing/condition in the workplace. And as we all know…

No hazard, no exposure = no accident.

2. Substitution: Substitute the hazard with a less hazardous condition, process or method. Some basic examples are substituting a toxic chemical with a non-toxic chemical or replacing an old poorly-designed machine with a new model.

3. Engineering controls: See if any of the strategies below are used in your workplace.

  • Design: Example – Design a tool so that it reduces the likelihood of a strain or sprain.
  • Redesign: Example – Change the design of a machine so that dangerous moving parts or electrical circuits are out of reach.
  • Enclosure: Examples – Place a hood over a noisy printer. Place a machine guard around a dangerous moving part.

These are the first to parts of the Hierarchy of Controls

 

Recommend System Improvements

This episode of “Safe in 60 Seconds” InterAct Safety Solution shares some tips on incident investigation – sustainable corrective actions.

The surface causes for accidents actually represent the symptoms of underlying safety management system weaknesses. This cause-effect relationship is so important to understand that I’ll say it again: the behaviors and conditions that caused the accident are, themselves, usually the effects of deeper root causes. This is a fact.

Consequently, your first assumption, as an accident investigator, should be that root causes have contributed to an accident, and your job is to find them. Your first basic assumption should never be that an accident is simply the result of surface causes. Once in a while, you’ll find that an accident was solely the result of a “personal failure,” but that won’t be often: in fact, it will be rare in most organizations.

Learn more about Root Cause Analysis

Therefore, make every effort to improve safety management system components to ensure long term workplace safety in your company. As we learned in the last module, the most successful accident investigator is actually a systems analyst. Making safety management system improvements might include some of the following examples:

  • including “safety” in a mission statement;
  • improving safety policy so that it clearly establishes responsibility and accountability;
  • changing a work process so that checklists are used that include safety checks;
  • including hands-on practice as part of the safety training program;
  • revising purchasing policy to include safety considerations as well as cost; and
  • changing the safety inspection process to include all supervisors and employees.

Check Out: Incident Investigation: Top 10 Mistakes

Answer the following six questions to help develop and justify recommendations.

1. What exactly is the problem?

  • What are the specific hazardous conditions and unsafe work practices that caused the problem?
  • What are system components – the inadequate design or implementation of safety management programs, policies, plans, processes, procedures and general practices that allowed the conditions and behaviors to exist?

2. What is the history of the problem?

Have similar accidents occurred previously? If so, you should be able to claim that the probability for similar accidents is highly likely to occur.

  • What are previous direct and indirect costs for similar accidents?
  • How have similar accidents affected production and morale?
  • Describe how it has affected direct, budgeted or insured costs related to past injuries or illnesses.
  • How has it affected indirect, unbudgeted or uninsured costs related to loss of efficiency and/or productivity and employee morale?

3. What are the solutions that would correct the problem?

  • What are the specific engineering, administrative and PPE controls that, when applied, will eliminate or at least reduce exposure to the hazardous conditions?
  • What are the specific system improvements needed to ensure a long term fix?

4. Who is the decision-maker?

  • Who is the person who can approve, authorize, and act on the corrective measures?
  • What are the possible objections that he/she might have?
  • What are the arguments that will be most effective in overcoming objections?

5. Why is the decision-maker doing safety?

It’s important to know what is motivating the decision-maker. Is the decision-maker doing safety to fulfill one or more of the following imperatives?

  • Fulfill the legal obligation? You may need to emphasize possible penalties if corrections are not made. Common in a fear-driven culture.
  • Fulfill the fiscal obligation? You may want to emphasize the costs/benefits. Common in an achievement-driven culture.
  • Fulfill the social obligation? You may want to emphasize improved morale, public relations. Common in a humane corporate culture.

6. What will be the cost/benefits of corrective actions and system improvements?

  • What are the costs that might result if/when OSHA inspects? Answer this question to address the legal obligation your employer has.
  • What is the estimated investment required to take corrective action, and how does that contrast with the possible costs if corrective actions are not taken? Answer this question to address the fiscal obligation your employer has.
  • What is the “message” sent to the workforce and the community as a result of action or inaction? Answer this question to address the social obligation your employer has.