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Keven Moore: OSHA facts and misconceptions — but, be clear, health, safety of employees is ‘Job #1’

The late ’60s was a turbulent time in the United States. The nation faced serious concerns abroad and at home. Civil rights, women’s rights, Vietnam, the Cold War, and the environment all demanded the country’s attention in Washington D.C.

At the same time, occupational injuries and illnesses were increasing in both number and severity. Disabling injuries increased by 20 percent during the decade, and 14,000 workers were dying on the job each year.

As a result, the Occupational Safety and Health Administration (OSHA) was established in 1971 under the Nixon administration and today is a part of the U.S. Department of Labor. Its mission was to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance. Its main purpose is to create safer workplaces in the U.S. by enacting the Occupational Safety and Health Act. OSHA is also responsible for developing enforceable safety standards and regulations that employers must comply with. Moreover, the agency conducts periodic inspections of workplaces to identify imminent threats and violations.

Fifty years later, OSHA has been influential in reducing the number of workplace injuries and fatalities with several initiatives and new standards.

One of the most compelling facts about OSHA is just how effective it has been. The U.S. 2021 workplace fatality rate is still being tabulated, but in 2020 in the U.S. there were 4,764 fatal work injuries recorded, a 10.7-percent decrease from 5,333 in 2019.

Keven Moore works in risk management services. He has a bachelor’s degree from the University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@higusa.com

In addition that same year, the private industry employers reported 2.7 million nonfatal workplace injuries and illnesses in 2020, down from 2.8 million in 2019, a decrease of 5.7 percent.

As a risk management and safety professional, I am still not a trained governmental researcher, but I would construe that the decrease could be attributed to the COVID pandemic

When the agency was just starting out, the National Safety Council estimated that 38 workers died on the job every day of the year, on average. Today, the Bureau of Labor Statistics (BLS) finds there are an average of 13 worker deaths per day, which is more than a 65% decrease.

To put this number in perspective, the total number of people in the workforce has more than doubled in this same time period.

Today Federal OSHA is a small agency in comparison to other agencies; combined with federal and state inspectors they have approximately 1,850 inspectors responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation — which translates to about one compliance officer for every 70,000 workers.

According to a colleague who works at Kentucky OSHA, there are currently less than 32 state inspectors, which means that there is one inspector for every 60,014 employees or 2,850 employer establishments.

Unfortunately, according to ZipRecruiter.com many of these OSHA inspectors are grossly underpaid. As of March 2022, the average annual pay for an OSHA Inspector in Kentucky is $31,951 a year which equates to aout $15.36 an hour.

Despite its consistent efforts, various misconceptions surround OSHA and its operations and inspections continue to be one of the most misunderstood processes with the clients that I work with today.

The myths about OSHA inspections often result in negative attitudes among business owners, employers, and workers. It is essential to be aware of these misconceptions or myths to be prepared for an OSHA inspection to avoid costly citations and penalties:

• OSHA Makes Money from Citations & Penalties –  OSHA inspectors are oftentimes perceived as corrupt government officials who earn monetary incentives by imposing fines. It is also believed that OSHA is a self-funded organization that funds its operations through penalties collected from various companies, which can sometimes prompt business owners and managers to be less cooperative with OSHA Inspectors. But neither of these misconceptions can be further from the truth.  Penalties and fines collected from companies under federal OSHA go directly to the U.S. Department of Treasury and not back to OSHA’s operating budget. 

• OSHA Can Inspect Your Workplace Without a Warrant -If OSHA inspectors arrive at your doorstep without a warrant, you have the right to refuse entry to complete the inspection. However, OSHA can easily obtain a warrant for a regular inspection. OSHA can also get a warrant if they can prove that there is a likelihood of a safety violation at your workplace. Asking for a warrant will only buy you some time to prepare for the inspection, but the question remains why spray water on the hornets’ nest if you can’t run away?

Moreover, a warrant will limit the scope of the inspection to areas that are mentioned in the warrant.

• OSHA Only Targets Big Companies  – This may be true to a certain extent because big businesses employ hundreds or thousands of workers and they are often given higher priority for OSHA inspections. However, it doesn’t make small companies with a handful of employees immune to OSHA inspections. Apart from the size of a company, OSHA considers the perceived level of risk associated with a workplace. For instance, office workers are less likely to be inspected than a dynamite plant, but that does mean they won’t be inspected. OSHA also takes into account additional factors such as employee complaints and the history of workplace injuries and fatalities. If you run a small business with potentially hazardous working conditions, OSHA inspectors will come after you.

• Inviting OSHA To Inspect Your Business Makes You Immune To Citations – This is false and is one of the biggest myths about OSHA inspections. First, when you invite OSHA to inspect your workplace, the agency sends their safety consulting team instead of an inspection team. The consulting team will then identify any potential violations and gives you a deadline to abate the hazard. If you fix or correct all of the violations within the given period, OSHA inspectors are not notified. However, if you fail to correct them, the consulting team will notify an OSHA inspector, and you will likely receive a citation. Thus, inviting OSHA to inspect your workplace doesn’t safeguard you from citations. 

• Employees Should Stop Working During An OSHA Inspection –  As a risk management and safety professional I have rolled up on many job sites and seen foremen immediately send all their employees home or to lunch regardless of the time of day. The purpose of an OSHA inspection is to ensure that employees are working in a safe and risk-free environment. Ordering your employees to halt regular business operations during the inspection defeats its purpose. Moreover, it can lead to legal repercussions and additional penalties. It is, recommended that you let your employees continue with their regular work routines and make sure that they cooperate with the inspector and answer all questions when asked.

• OSHA Can Order A Shutdown Or Arrest  – If an OSHA compliance officer identifies an imminent threat to employees, they can request you to remove workers from the hazardous environment. However, OSHA inspectors don’t have the authority to order the complete shutdown of a worksite. It requires a court order meaning it is up to the discretion of the court. Likewise, OSHA officials don’t have the authority to press criminal charges during or after an inspection. Any cases of suspected criminal nature are to be referred to the U.S. Department of Justice. It is up to the Justice Department to take appropriate action.

• OSHA Can’t Cite Me Because I Use Temporary Staffing or Subcontractors – Just because you haven’t directly hired an employee or have somebody on your payroll, it doesn’t mean you aren’t responsible for ensuring their safety and wellbeing. According to OSHA’s guidelines, both staffing agencies, controlling contractors, and host employees are responsible for the safety and health of contractual workers. If a temporary employee is involved in a workplace accident, you will be held liable. It is, therefore, crucial to ensure that temporary employees are also included in your workplace safety program.
Additionally, you should provide them with adequate training to operate high-risk tools and equipment.

Be Safe My Friends

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