United States: OSHA Recommends A Safety And Health Management System — Does Your Business Need One?

Seyfarth Synopsis: Safety and health management systems (SHMSs) may demonstrate a commitment to improving safety and health outcomes, and reduce legal liabilities.

The federal OSHA standards mandate a series of written safety and health programs, depending on the hazards at the worksite, such as a lockout-tagout program (machine re-energization hazards), hazard communication program (chemical hazards), and respiratory protection program (for airborne health hazards).

While OSHA often requests a Company's "safety program" during its onsite inspections, this is a misnomer as there is no federal requirement for an overarching "safety program" to govern all hazards and safety and health programs. No federal OSHA regulation currently requires an SHMS. There has been talk for many years of federal OSHA developing a federal SHMS or "Injury and Illness Prevention Plan" standard, but no regulations have materialized.

1. Elements of an SHMS

OSHA guidance recommends that each employer develop a Safety and Health Management System overseeing all safety and health programs.

Major elements include:

1. Management Leadership. OSHA wants employers to outline management oversight over the program, resources for the program, setting safety and health goals, and verification.
2. Worker Participation. OSHA advises employers to include employees in far more areas of safety and health programs than typical in industry. This includes policies requiring reporting of safety concerns, prompt investigation and response to this concerns, providing access to programs and documents, conducting workplace inspections, investigating incidents, and reviewing/improving training programs.
3. Hazard Identification and Assessment. This means a wide-ranging review of potential safety information such as past incidents, OSHA standards, equipment safety information, and input from team members. Employers then inspect the workplace, including after incidents, and identify hazards and prioritize for abatement.
4. Employee Education and Training. Training addresses programs, controls, and hazard identification. Key to any program, supervisors must be trained on responsibilities under the OSH Act with regard to supervision and enforcement of safety rules.
5. Hazard Prevention and Control. For hazards management will identify or anticipate, management will gather and evaluate information about appropriate controls, select appropriate controls, and ensure that they reduce safety and health risks to the lowest acceptable level.
6. Program Evaluation and Improvement. The employer must monitor program performance and track progress, including metrics on the number of inspections that have taken place, number of hazards reported, number of OSHA-recordable injuries and illnesses, and injury and illness rates compared to the industry.
7. Communication and Coordination for Host Employers, Contractors, and Staffing Agencies. In temporary worker, staffing agency, and multiemployer situations, OSHA believes that safety is enhanced if employers establish mechanisms to coordinate their efforts and communicate effectively to afford all workers protection against hazards. These efforts include worksite-specific training on reasonably anticipated hazards.
8. Benefits of an SHMS

OSHA values SHMSs and likely will interpret the good faith implementation of an SHMS by an employer as an effort to address employee safety and health in a positive manner. Federal OSHA maintains its own SHMS for OSHA employees, an indication of its importance to the agency. If the employer has an SHMS, OSHA may be less likely to open an onsite inspection, less likely to expand its inspection, more likely to limit an onsite inspection, and less likely to issue citations. Judges addressing Willful OSHA citations have vacated these citations where the employer was not "doing nothing" to address the hazard. An SHMS would provide evidence that the employer recognized a hazard and attempted to address it in good faith, and that any violation of the OSH Act was not Willful. Finally, OSHA often demands the institution of such a program as an "enhancement" to settle citations, meaning that an SHMS may be a useful tool in settlement of pending citations.

A frequent argument in support of an SHMS program is that it represents a more "holistic" approach to safety and health at the workplace. Rather than focusing on compliance with existing OSHA regulations, frequently described as "vertical" standards because they address a specific hazard (e.g. lockout-tagout, machine guarding, noise, etc.) — and thereby either overlooking or ignoring hazards for which there is no regulation — an SHMS is broad and "horizontal" in approach, that is, identifying all hazards that may exist in the workplace, not just those for which there may be a regulation and developing proactive measures. OSHA cites statistical studies in support the effectiveness of SHMS programs in reviewing injury and illnesses in the workplace.

3. Similarities to a California IIPP

For decades, California OSHA has required that each employer maintain an IIPP, an overarching program with significant overlap with a SHMS. The primary difference we see in federal OSHA's SHMS guidance are elements (B), (F), and (G) above — greater levels of employee access, not just access to the program document, but active employee involvement in several aspects of implementation. Also, the SHMS recommendations speak to broader industry evaluation and tracking, and to specific communication with contractors, a major source of workplace injuries and OSHA citations. Employers who use a California-compliant IIPP on a national basis may benefit by supplementing with some additional elements OSHA recommends for an SHMS.

4. Action Plan to Develop and SHMS

Safety professionals tell us that employers can reduce their rates of occupational injuries and illnesses by examining the hazards in their workplaces and developing strategies to reduce them. An SHMS is recommended as an effective way to formalize those efforts and address safety. Seyfarth Shaw LLP helps employers develop SHMSs, and revise a range of safety policies to meet or exceed OSHA regulations and industry best practices.

Readers may also wish to check out these substantive details from OSHA on SMHSs, along with a Bureau of Labor Statistics source which provides detail on how to conduct a credible "root cause" analysis.