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SAN FRANCISCO—Dramatically increased penalties for Occupational Safety and Health (OSH) Act violations and new requirements under the law should prompt HR to look for strategies to reduce legal risks. One of the best ways to reduce legal exposure is to think like Occupational Safety and Health Administration (OSHA) investigators, according to Neil Wasser, an attorney with Constangy, Brooks, Smith & Prophete in Atlanta.
Under the Federal Civil Penalties Inflation Adjustment Act of 1990, most federal agencies can, to keep up with inflation, raise their civil penalties against violators of the acts they regulate. But OSH Act was excluded, noted Wasser, speaking Oct. 17 at the Association of Corporate Counsel Annual Meeting. Congress changed that exception with the Bipartisan Budget Act of 2015, which allowed OSH Act penalties to be increased steeply as of Aug. 1, 2016. OSH Act penalties are now as follows:
In addition to the existing mandate of reporting all work-related fatalities within eight hours, new rules now require reporting within 24 hours:
"Some states have been slow to adopt" these new rules, but Wasser said that they "all eventually will come online."
Another change is that starting in July 2017, OSHA's Form 300A (the summary of work-related injuries and illnesses) will have to be filed online by covered establishments. By July 1, 2018, Form 300 (the log of work-related injuries and illnesses), Form 300A and Form 301 (the injury and illness incident report) will have to be filed electronically. And the Form 300, Form 300A and Form 301 all will have to be filed by March 2, 2019, and annually in March thereafter. Much more public disclosure will be required under these mandates, Wasser commented.
In addition, new anti-retaliation provisions of OSHA's injury and illness tracking rule are to take effect Dec. 1, 2016.
The changes heighten the need for greater OSH Act compliance.
Think Like OSHA
Employers should do research to see what OSHA officials are thinking when they enter companies' facilities, Wasser said. Look at the most frequently cited violations for your industry.
He said that violations that are cited frequently include:
The highest penalties are for repeat and willful citations. Repeat citations used to be limited to ones recorded in the past three years but have been expanded to the last five years, he noted.
For repeat violations, OSHA looks at all of a company's facilities nationwide. So check what OSHA citations your business has received. Then ask whether these violations have been fixed everywhere, Wasser said. If they haven't, the business has some work to do.
Willful violation penalties may come about after companies have audited their facilities but not followed through to fix deficiencies uncovered by the audits. "Audit only what you're prepared to fix," he noted.
"Audit only what you're prepared to fix," Wasser said.
Steven Ginski, chief counsel of global health, safety and remediation for International Paper Company in Memphis, Tenn., said that his company conducts compliance audits as well as management system audits. "If a [machine's] guard is missing, what is it that allowed that condition to exist?" the company's safety leaders will ask. He said that an extra layer of audit is a good way to ensure no one is hurt.
The company relies mainly on internal auditors. Auditors have to be knowledgeable about violations, good writers and willing to travel, Ginski said. They also need good people skills to point out problems to others as tactfully as possible.
International Paper Company has looked at all serious injuries and fatalities in the business over the past 10 years to draw lessons from them. Faulty machine guarding and falls were the most common cause of serious injuries and fatalities.
"If you want to improve safety, look at your organization," he said.
The company has had a 70 percent reduction in injuries thanks to its efforts, which have included encouraging employees to care about safety. Every employee is supposed to make a safety observation every month—whether positive or negative.
"The challenge of safety is it affects everyone in the organization," Ginski noted.
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