Earlier this fall, Assistant Secretary of Labor for Occupational Safety and Health David Michaels announced that the Occupational Safety and Health Administration ("OSHA") will be implementing a new protocol under which OSHA will evaluate inspections based on their complexity and need for resources.
OSHA is charged with enforcing the Occupational Safety and
Health Act of 1970 (the OSH Act), which applies to virtually all
private employers. To that end, OSHA has promulgated a substantial
set of regulations, or "standards," aimed at preventing
workplace accidents and improving the quality of workers'
day-to-day-work environments.
To monitor employers' compliance with the federal workplace
safety and health standards, OSHA conducts on-site safety and
health inspections, often without any advanced notice. Because of
the sheer number of workplaces under OSHA jurisdiction, OSHA
currently prioritizes worksite inspections in the following order:
imminent danger, fatalities/catastrophes, employee
complaints/referrals (which can be anonymous), and programmed
inspections.
Currently, OSHA's measures its enforcement activity based on
the number of inspections it conducts. In fiscal year 2014, OSHA
conducted 36,163 such safety and health inspections.
The new weighting system, announced by Dr. Michaels at the 2015
National Safety Council Congress and Expo in Atlanta during the
last week of September and in an October 1, 2015 blog post on the
U.S. Department of Labor website, considers how much manpower,
time, and resources are needed based on the complexity of the
inspection. Under the new protocol, inspections are evaluated based
on a new unit of measurement: the "Enforcement
Unit."
As Dr. Michaels explained, although all inspections are important
and potentially life-saving, they are not all equal. Some are
simply more complex and require more time and resources to conduct
than others. These kinds of inspections - for example, of large,
high-profile, high-hazard facilities- are important because they
send a message to potential violators that OSHA will not shy away
from the challenge of investigating hazards in complicated work
environments.
To recognize this reality, OSHA is introducing the
"Enforcement Unit," which accounts for the difficulty of
a particular inspection and the amount of time and resources needed
to complete it. Under this new weighted system, each inspection is
"worth" a certain number of Enforcement Units based on
historical data. More complex categories of inspections are valued
at a higher number of Enforcement Units. For example, process
safety management inspections involving highly hazardous chemicals
are valued at seven Enforcement Units; workplace violence
inspections and those involving chemicals for which there are no
permissible exposure limits are valued at three Enforcement Units;
and routine inspections are valued at one Enforcement Unit. The
system thus allows OSHA inspectors to take on those bigger, more
"meaningful" inspections without worrying about the
number of inspections they could complete in the same amount of
time. Dr. Michaels emphasized that the shift to this weighted
system does not change the fact that OSHA has never set inspection
quotas.
Despite the announcement, OSHA does not appear to be rushing to
change over to the Enforcement Unit. The agency has been testing
this new approach for the past two years by running a parallel
pilot program alongside its traditional inspection-counting system,
and it continues to evaluate and adjust the system based on those
results.
Private employers in New Jersey are subject to federal OSHA
standards because the state's occupational health and safety
program only covers public sector employees. Thirty-four other
states have some type of state-level program for worker safety and
health and employers should be aware of those requirements to the
extent they may apply. The state programs are available at:
https://www.osha.gov/dsg/topics/safetyhealth/states.html.
For those employers under OSHA's jurisdiction, this shift in
the agency's enforcement strategy may result in high-hazard
industries being inspected more frequently, making it that much
more important for you to prioritize OSHA compliance. Although it
will require investments of time and resources up front to
establish effective workplace health and safety programs, the
information gained through compliance will increase your ability to
identify and eliminate workplace hazards, thereby reducing the
chance that your worksite will be targeted for a large-scale OSHA
inspection.
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