Hawaii’s OSH Plan Status Suspended Until 2015

Federal OSHA promises increased staffing, inspections

By Roy Maurer Oct 3, 2012

Hawaii’s workplace health and safety plan status has been temporarily suspended until 2015, while the U.S. Occupational Safety and Health Administration (OSHA) reinstates concurrent federal enforcement authority over occupational safety and health issues.

Hawaii Gov. Neil Abercrombie joined U.S. Regional Administrator Ken Nishiyama Atha in signing an agreement on Sept. 21, 2012, that outlines how OSHA and the state Department of Labor and Industrial Relations’ Hawaii Occupational Safety and Health Division (HIOSH) will collaborate to meet safety and health goals and enforce safe and healthy working conditions for Hawaii’s workers.

Federal OSHA assumed concurrent jurisdiction over most private-sector employment in the state and began providing enforcement activity in accordance with the terms of an Operational Status Agreement between OSHA and HIOSH, effective upon signing.

This means that HIOSH will have to add staff and steadily increase safety inspections to meet federal benchmarks. Resumption of concurrent federal jurisdiction does not impose any new compliance obligations on employers since standards enforced under the Hawaii State Plan are either identical to federal standards, or more stringent. Penalty calculations could be slightly different depending on which agency conducts the inspection and issues the citation.

Benchmarks Required of HIOSH

For OSHA to determine that Hawaii’s state plan is at least as effective as federal regulations, HIOSH will need to maintain staffing benchmarks for health and safety inspectors and consultation staff, meet inspection benchmarks, develop appropriate case file documentation skills, implement effective compliance assistance programs, and improve grant management and reporting.

During the past three years, HIOSH has faced major budgetary and staffing restraints that have affected its program significantly, according to OSHA’s recently released Federal Annual Monitoring and Evaluation Report.

“Joint efforts were made by federal OSHA and HIOSH to address these issues, yet Hawaii continues to face severe programmatic, staffing and training challenges,” the report noted. The Hawaii director of Labor and Industrial Relations requested a temporary modification of the state plan’s approval status from final approval to initial approval, to permit exercise of supplemental federal enforcement activity and to allow Hawaii sufficient time and assistance to strengthen its state plan.

The agreement does not terminate federal approval of the Hawaii State Plan and does not affect the legal authority of Hawaii to carry on enforcement activities under the plan. Also, the Hawaii State Plan and all its regulations remain in effect.

The agreement calls for HIOSH to maintain nine safety and nine health inspectors, three managerial positions, and four consultation and training staff positions. It will continue to enforce health and safety laws for and maintain responsibility for state and local governments, public-sector maritime activities, construction, warehousing and transportation.

Federal OSHA retains regulatory responsibility over the private maritime industry, federal employees, postal operations, and workers and contractors where the land is under exclusive federal jurisdiction (e.g., national parks and military bases). Additionally, OSHA will be responsible for general industry and manufacturing inspections.

OSHA anticipates conducting 40 percent (200) of the 500 inspections in the state in fiscal year 2013. In fiscal year 2014, OSHA’s inspection target will decrease to 24 percent (150) of inspections and HIOSH will resume responsibility for accommodations and food service. By 2015, OSHA is scheduled to conduct 14 percent (100) of 740 inspections, and HIOSH will eventually resume responsibility for general industry inspections.

HIOSH will continue to investigate complaints of alleged whistle-blower retaliation violations and violations of permissible exposure limits where hazardous chemicals or gases are present.

Other points of the agreement include:

  • Supplementary financial support for HIOSH. Federal funds not matched by HIOSH will be redirected to support OSHA assistance to the state. Previously, federal funding not used or matched by HIOSH was returned to the federal government.
  • Assistance from OSHA in developing a training plan for the HIOSH staff, including supervisory development.
  • Additional mentoring opportunities for HIOSH staff from more experienced federal inspectors.
  • OSHA assistance to develop compliance assistance programs.

Hawaii has pledged to accomplish the necessary corrective action to regain final approval status within three years.

Employer Reaction

“We believe that employers welcome the additional support and training OSHA will bring to HIOSH,” Melissa Pavlicek, president of Hawaii Public Policy Advocates LLC, told SHRM Online. Pavlicek, who serves as the executive director of the Society for Human Resource Management’s Hawaii chapter, expressed that some Hawaii employers were frustrated with HIOSH, particularly regarding the formula for identifying which employers to inspect, “which seemed inconsistent and at times unduly adversarial.”

Pavlicek said that Hawaii employers realized that HIOSH was “severely lacking much needed resources and training.” HIOSH inspectors conducted less than half of their target inspections. Yet, “we heard complaints from some employers that HIOSH had misclassified hazards and missed some hazards altogether. There was a concern that workplace injuries including death claims were rising,” she said.

Politics Playing a Part?

Abercrombie, a Democrat, said in a statement that HIOSH’s enforcement capacity was eroded when former Republican Gov. Lisa Lingle’s administration eliminated 32 of 51 HIOSH positions during a 2009 reduction-in-force process, and as a result HIOSH completed only 426 inspections toward its goal of 835 inspections in fiscal year 2009.

Presently, former Gov. Lingle is in a hotly contested race for an open U.S. Senate seat against Rep. Mazie Hirono, a Democrat.

Roy Maurer is an online editor/manager for SHRM.

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