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The Occupational Safety and Health Review Commission (OSHRC) ruled that hazard assessments undertaken by a corporation must accurately reflect the hazards encountered by employees at each specific facility, regardless of any operational or design similarities across multiple worksites.
The commission rejected Wal-Mart Stores Inc.’s argument that a hazard assessment of whether its employees needed to use personal protective equipment at one distribution center served as a “global assessment” for each of Wal-Mart’s distribution centers nationwide.
OSHRC retained a $1,700 penalty against Wal-Mart for violating the Occupational Safety and Health Administration’s (OSHA’s) personal protective equipment standard.
OSHA cited Wal-Mart after a 2008 inspection of a distribution center in New Braunfels, Texas, for, among other things, failing to assess conditions at the New Braunfels center to determine whether employees needed to wear protective equipment. Wal-Mart responded that its assessment of conditions at its center in Searcy, Ark., served as an assessment for all of its 120 distribution centers nationwide because the centers were the same.
The regulation states that “[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment.”
The commission majority of Thomasina V. Rogers and Cynthia L. Attwood concluded that the standard calls for a hazard assessment to be done at each particular workplace and that the phrase “assess the workplace” means that the employer “must perform an onsite, individualized assessment of the subject worksite, thus precluding use of a ‘global assessment.’ ”
The majority decision states that while the standard is silent regarding the method an employer must use to assess its workplace for hazards, it does indicate that the assessment must take into account the conditions specific to each worksite.
A Wal-Mart safety director testified that the design and operations of the Searcy and New Braunfels centers are similar, and that the functions and job requirements are the same and involve the same equipment, but that he had not been to the New Braunfels center prior to the inspection.
“We find, therefore, that he had not determined from personal observation that the conditions at New Braunfels were the same as those at Searcy as of the relevant period,” OSHRC said.
The commission also found Wal-Mart’s action of placing its Searcy center assessment on the company’s intranet for all employees to see to be insufficient.
“The New Braunfels general manager testified that prior to the OSHA inspection, neither he nor his subordinates had any communications with anyone at the corporate level about a hazard assessment at the New Braunfels center,” OSHRC said.
The commission concluded that the Searcy center assessment was insufficient to establish compliance with the cited standard at the New Braunfels center because Wal-Mart never verified that conditions at New Braunfels were equivalent to those at Searcy, and did not otherwise conduct a hazard assessment of the New Braunfels center.
Dissenting Opinion: Site-Specific Assessments Not Required
Commissioner Heather L. MacDougall dissented from the majority decision, stating that the standard’s requirement that an employer assess the workplace does not necessitate a site-specific walk-through to determine if hazards are present.
MacDougall noted that the regulation’s Appendix B
suggests that an employer conduct a “walk-through survey of the areas in question,” but that OSHA placed this language in a nonmandatory appendix rather than in the standard itself, consistent with the regulation being a performance standard. “A performance standard differs from a specification standard in that, rather than directing specific measures to be taken whenever a hazard identified by [OSHA] is present, it allows the employer, within the standard’s general guidelines, flexibility to identify the hazards particular to its own working conditions and determine the steps necessary to abate them. In other words, performance standards state the required result without specifically mandating how that result is to be achieved,” she said.
OSHA is improperly attempting to transform the standard from being performance-oriented into a specification standard, she added. The reading “does not sensibly conform to the purpose and wording of the standard, ignores the fact that the only reference to a walk-through survey is in the nonmandatory part of the standard, and fails to give Wal-Mart fair notice that a site-specific, walk-through survey was required to comply with it.”
Best Practices for Employers
The case represents important takeaways for employers, said Mark Lies, a partner in the Chicago office of Seyfarth Shaw. Lies recommended that employers:
*Conduct a job hazard assessment of each worksite to identify potential and actual hazards to employees. A standard template may be utilized at each location but “employers must have input from individuals who are familiar with the unique conditions of each particular workplace in order to ensure that each location’s hazard assessment is accurate,” he said.
*Develop a means to collect data across worksites regarding potential hazards, disseminate the data and include it, if applicable, in individual job hazard assessments at each worksite.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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