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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