United States: OSHA Identifies Workplaces With Highest Injury And Illness Rates

Last month, the Occupational Safety & Health Administration (OSHA) sent letters to approximately 13,000 employers with injury and illness rates higher than the national average. (OSHA has published a complete list of the 13,000 workplaces receiving this letter on its web site.) The 13,000 workplaces had eight (8) or more injuries or illnesses resulting in lost workdays or restricted activities for every 100 full-time workers, based on data from calendar year 2000.

OSHA's letter expresses "concern about the high LWDII [Lost Work Day Injury & Illness] rate at your establishment" and encourages the identified employers to seek outside assistance to lower their injury and illness rates. It specifically encourages employers with 250 or fewer workers to participate in OSHA's consultation program. (No employer should participate in OSHA's consultation program without carefully considering all of the requirements for participation.)

Receipt of a letter from OSHA does not mean that the employer will be targeted for inspection. However, OSHA is very likely to use the list of 13,000 employers as a basis for establishing a targeted inspection program later in the year. An employer which has received such a letter should take steps now to assess its compliance with the Occupational Safety and Health Act and the OSHA standards issued pursuant to that Act.

For many employers, one of the most burdensome and least understood requirements of the Lockout/Tagout Standard (29 CFR 1910.147) is the requirement to "conduct a periodic inspection of the energy control procedure at least annually to ensure that the procedure and the requirements of [the lockout/tagout] standard are being followed." A recently published (although dated April 6, 2000) OSHA interpretation letter describes exactly what this requirement means.

First, each machine-specific energy control procedure must be inspected at least annually. For larger workplaces, many of which may have hundreds of machine-specific procedures, this is an incredibly burdensome requirement. In addition, the periodic inspection of the machine-specific procedures must be conducted by "authorized employees" who are employees "other than the ones utilizing the energy control procedure being inspected." This simply adds to the burden the standard places on employers.

Second, the inspection of the machine-specific procedures must be "of sufficient breadth to enable the inspector to detect, and to correct, any deviations from or inadequacies in the energy control procedure." According to OSHA, it is necessary to observe at least a "representative number" of authorized employees as they implement the specific energy control procedure.

Third, the periodic inspection must include a review "between the inspector and each authorized employee, of that employee's responsibilities under the energy control procedure being inspected" (emphasis added). This review does not necessarily require observation of each authorized employee implementing the machine-specific procedure. Rather, a group meeting between the authorized employee performing the inspection and all authorized employees implementing the procedure would suffice. However, it is apparent that OSHA contends that these group meetings must address each machine-specific procedure.

This requirement for periodic inspections is not new and OSHA has stated a similar interpretation of this requirement in the past. Nevertheless, for larger operations, this requirement is often ignored. If an employer does not currently comply with the periodic inspection requirement of the Lockout/Tagout Standard, the employer should take steps to come into compliance. If compliance is simply not possible given the large number of machine-specific procedures, the employer needs to develop an approach to minimize the risk of an OSHA citation and to minimize the severity of any OSHA citation should one be issued.

As noted in prior OSHA Updates, unions intend to initiate complaints with OSHA offices regarding alleged ergonomic hazards in workplaces. This is in response to OSHA's failure to reissue an ergonomics standard. It is the unions' attempt to force the issue. The United Food and Commercial Workers Union has recently taken just this approach. It filed a complaint alleging that workers at a Texas poultry plant are exposed to ergonomic hazards. Although OSHA has recently been very reluctant to pursue ergonomic claims, OSHA Area Offices typically respond relatively quickly to specific complaints of hazards filed with them. It is reasonable to expect more such complaints to be filed in the coming months.

While OSHA has still not announced its approach to ergonomics, there is increasing speculation that OSHA will issue guidelines rather than a new standard. These guidelines may address specific industries or specific tasks rather than addressing ergonomics in a more general way.