May 22, 2016

 

Recently, OSHA’s updated regulations were released and the current administration has wasted no time in its enforcement.

While OSHA intends to protect workers and empower employers to maintain a safe, productive work environment, there is a gap in understanding exactly how to adhere to the regulations as the agency expects. It is often difficult to extract an accurate interpretation from the regulatory language and legalese.

 

The Final Rule

The US Department of Labor issued a final rule with the intent of modernizing injury data, making it readily available to workers, the public, other industries, and competing companies. OSHA requires employers to record any work-related injuries or illnesses that occur on a company’s premises as well as the health information collected from employees upon hire.

All high-hazard industries are then required to send the data directly to OSHA, which is then listed on the Occupational Safety and Health Administration’s website. OSHA likens this process to the mandatory public disclosure of sanitary conditions of restaurants.

According to the final rule for recordkeeping:

 

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit their injury and illness data to OSHA annually.
  1. Establishments with 20-249 employees in certain so-called “high hazard industries” must submit information from their 300A Annual Summaries each year.
  1. All submissions to OSHA must be made electronically via a secure internet connection.
  1. OSHA will then publish the data online.

 

Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, hopes this rule will direct companies down the right path. “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace. Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers, and the public that they operate safe and well-managed facilities.”

 

But will these new regulations actually increase safety for workers? And what does it mean for employers?

Public disclosure invites opinions. It is likely these particular opinions will bring difficulty for those employers scrambling to “keep up an image.” Companies now face the issue of misinterpreted data: a pool of data which does not reflect performance and should not be considered reliable when comparing organizations.

Just as disclosing sanitary conditions encourages restaurant owners to improve food safety, OSHA expects publically disclosing work injury data will urge employers to increase their efforts to prevent work-related injuries and illnesses.

While this data collection will enable researchers to identify new workplace safety hazards and prevent consequential injuries, it seems there is no direct way these regulations will provide safer work environments.

 

Where should employers draw the line when it comes to reporting illness or injuries?

For example, as OSHA explains, if a worker suffers from a side effect of a medication taken at home, this would not be considered work-related, despite its occurrence on-site.

However, an employee who drinks alcohol on the premises and suffers an injury due to intoxication is not considered an exemption.

OSHA states, “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition or is intentionally inflicted.”

Drinking alcohol during work hours does not count as “self-medicating” alcoholism.

The issue of non-work-related factors involved in injuries that occur on company property was addressed when OSHA formulated this rule in 2001. OSHA was urged to create exceptions to the rule when some injuries resulted after employees engaged in illegal activities or failed to follow work rules.

However, OSHA rejected this. Excluding these injuries would be inconsistent with its longstanding policy that injuries occurring at work are most often work-related.

Recording incidents such as these serves to alert the employer and employees to workplace safety and health issues as well as the effectiveness of disciplinary policies and supervision.

Wal-Mart vs. OSHRC

In the case of Wal-Mart vs. OSHRC (Occupational Safety and Health Review Commission), the ambiguity of OSHA’s regulations came into question.

In February 2008, OSHA inspected a Wal-Mart distribution center in New Braunfels, Texas. Six months later, OSHA issued a $1,700 fine to Wal-Mart for failure to conduct an individual hazard assessment of the same distribution center.

A month earlier, OSHA inspected another distribution center in a separate location, after which Wal-Mart claimed they would apply the assessment requirements found in the inspection to all remaining distribution centers. OSHA claimed that despite Wal-Mart’s promise to implement changes from the first inspection, including conducting individual hazard assessments, they failed to do so and thus, were presented with the fine.

Wal-Mart appealed the fine and brought the situation to court, claiming the ambiguous language of regulation 1910.132(d)(1). The regulation states that employers must “assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment.”

The confusion revolved around whether or not separate inspections should be conducted on “identical” distribution centers. As Wal-Mart did not identify the two inspected centers as being wholly identical, the OSHA regulations were upheld by the court.

In cases where regulatory language is found to be ambiguous, court systems often seek OSHA’s interpretation. In this case, OSHA claimed that despite two distribution centers being identical (and due to the fact that they were not originally claimed as being identical), working conditions can change and it was necessary to treat them as individual environments.

Adapting to Change

The complete regulations will be rolled out over the next two years, while the new final rule requirements take effect Aug. 10, 2016, with phased in data submissions beginning in 2017. With the uncertainties that may arise regarding vague or nondescript regulatory language, it is up to employers to seek out answers to prevent potential misunderstandings.

The safety of workers is solely up to the employers and now, the data is more relevant and permanent than ever.

 

Need help determining how to keep your worksite and staff safe?

Contact us today to discuss the right options for you.

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