Let’s suggest the following scenario: Inspectors from the Occupational Safety and Health Administration (OSHA) show up at one of your worksites and, of course, want to see all of your paperwork pertaining to the safety practices they are scrutinizing. Besides the required documents, what would be a good idea to have available to show them?
Of course, you want to have intact and readily available everything an employer is expected to have on hand for the inspectors’ review, such as illness and injury report data. But what else should you have to show the OSHA inspectors? Evidence that you have taken additional measures to maintain a safe workplace can be helpful, especially if OSHA has already said they are something the inspectors will look for, say attorneys from the law firm of Seyfarth Shaw.
This may be the case, especially for those employers who have been targeted for OSHA investigations after the agency has instituted National Emphasis and Regional Emphasis Programs (NEPs and REPs), as it has chosen to do more of since President Biden took office.
Most recently, the agency issued an REP for various operations with a particular focus on powered lift trucks. It covers warehousing, storage, and distribution yard operations located in OSHA’s Region 3 (which encompasses the states of Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and Washington, DC.).
In addition to general and refrigerated warehousing and storage, other employers in the region were told to get ready for special scrutiny by the agency, including retail and wholesale groceries, wholesale meat products, beer and ale, and fluid milk and bottled and canned soft drinks and water. In addition to lift trucks, OSHA says it will be looking at lockout/tagout practices, life safety, means of egress and fire suppression.
In this situation, one of the ways to advance your company’s cause is to show evidence that a worksite has implemented safety planning measures recommended by OSHA. Specifically, a Safety and Health Management System (SHMS) may help demonstrate your commitment to improving safety and health outcomes and reducing legal liabilities, according to the attorneys.
“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,” they said. Currently, there is no federal OSHA regulation currently that requires an SHMS (although there has been talking for many years of federal OSHA developing a federal SHMS or Injury and Illness Prevention Plan standard, no regulations have materialized).
However, the OSHA guidance does explicitly recommend that each employer develop an SHMS that encompasses all safety and health programs.
How to Build Your Plan
Major elements of an SHMS that OSHA would like to see you include are:
Management Leadership. OSHA wants employers to outline management oversight over the program, resources for the program, setting safety and health goals, and verification.
Worker Participation. OSHA advises employers to include employees in far more areas of safety and health programs than are typical in industry. This includes policies requiring reporting of safety concerns, prompt investigation and response to those concerns, providing access to programs and documents, conducting workplace inspections, investigating incidents, and reviewing and improving training programs.
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 that they then prioritize for abatement.
Employee Education and Training. The training addresses programs, controls, and hazard identification. Key to any program, supervisors must be trained on responsibilities under the Occupational Safety and Health Act with regard to supervision and enforcement of safety rules.
Hazard Prevention and Control. In regard to hazards, management will identify or anticipate them. Management will gather and evaluate information about appropriate controls, select appropriate controls, and take steps to ensure that they reduce safety and health risks to the lowest acceptable level.
Program Evaluation and Improvement. The employer must monitor program performance and track progress, including metrics on the number of inspections that have taken place, the number of hazards reported, the number of OSHA-recordable injuries and illnesses, and injury and illness rates compared to the industry.
Communication and Coordination for Host Employers, Contractors, and Staffing Agencies. In temporary worker, staffing agency, and multi-employer situations, OSHA believes that safety is enhanced when 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.
“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,” stress the Seyfarth Shaw attorneys. “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.”
A measure of the extent of the agency’s belief in the importance of these plans is the fact that the federal OSHA agency maintains its own SHMS that applies to OSHA employees. In fact, judges have vacated willful OSHA citations where it was found that 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,” the attorneys point out. In addition, OSHA often demands the institution of such a program as an “enhancement” to settle citations, meaning that an SHMS may be a helpful tool in the settlement of pending citations.
“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,” the attorneys say. “An SHMS is recommended as an effective way to formalize those efforts and address safety.”
They add that employers also may wish to check out these substantive details from OSHA on how to write and use an SMHS, along with a Bureau of Labor Statistics source which provides details on how to conduct a credible root cause analysis.
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