AVOIDING OSHA DRIVE-BY INSPECTIONS
Here it is early 2012 and construction is still not showing much improvement. You have done all you can to cut costs within your company and there is fierce competition for every project on which you bid. Finally, you land a project and when you least expect it OSHA shows up on your site. An OSHA compliance officer drove by your site and observed a safety violation. The compliance officer informs you after an inspection that a citation for safety violations costing several thousand dollars will be issued to your company.
This scenario occurs on construction sites every day throughout the United States. Although OSHA has jurisdiction over most of the work places in the United States, about fifty-percent of all OSHA inspections take place on construction sites. Why is this? The reason is that the construction industry consistently has high rates of injuries and death among construction workers. Therefore, OSHA continues to target construction sites for inspections.
One of the primary methods that OSHA uses to target construction sites is driving by construction sites and looking for safety violations. The courts have long held that an OSHA compliance officer has a legal right to make an inspection in any work place where a safety violation is in plain view. Construction sites are particularly vulnerable since construction work is highly visible from nearby roads or other public places.
Contractors can avoid this type of inspection if they take some necessary precautions. The first thing to do is to look at the entire site when you drive up at 7:00 a.m. First, how clean is the site? Poor housekeeping during construction generates piles of debris that can look like a death trap, particularly to an OSHA inspector. A clean site is a safe site.
Second, make sure that any scaffolding on site is properly erected according to the OSHA scaffolding standard. Improperly erected scaffolding can be seen a block away and virtually guarantees an OSHA inspection.
Third, check to see if there any fall protection issues. Ironworkers and roofers must use fall protection according to either the fall protection standard or the steel erection standard. Construction workers not using fall protection when necessary may result in an OSHA inspection. Make sure that guardrails are installed along floor edges and window openings when they are required. Missing guardrails are easily seen from nearby roads and can trigger an OSHA inspection.
Do not forget about boom or snorkel lifts. It is easy to spot a construction worker not wearing a full body harness while working from a boom lift. Fall protection is not required while working from a scissors lift as long as the guardrails are intact.
Finally, make sure that all construction workers are wearing hard hats. Hard hats are necessary in virtually all areas of a construction site. No one likes to wear them, but they are necessary to protect from potential head injury. Hard hat use also suggests to an OSHA inspector that OSHA regulations are being enforced on site.
No one can guarantee that you will not be inspected by OSHA, but if you consistently follow the above suggestions, then you will reduce the chance of a drive-by inspection.
Lee Phillips, CHST
A "FEASIBLE" SHORTCUT: OSHA AVOIDS RULEMAKING IN EFFORT TO MAKE EMPLOYERS INSTALL NOISE-REDUCING ENGINEERING CONTROLS
As everyone who reads this newsletter is well aware, when a federal agency like the Occupational Safety and Health Administration (OSHA) wants to change the law, it must undergo what is known as formal, "notice-and-comment" rulemaking: it first announces that it will be issuing a rule or changing a rule, allows the public to submit comments, and then either issues the rule with necessary changes, or declines to issue a new or revised rule.
Lately, however, OSHA has made bold pronouncements that certain conditions violate the Occupational Safety and Health Act without going through the rulemaking process. First, in November 2009 it issued a "Fact Sheet" of specific measures that all retail stores should implement to protect their employees from unruly customers. It also issued an open letter to employers earlier this year that OSHA will issue a citation any company whose work requirements encourage employees to text while they drive.
But now OSHA has announced an abrupt change in enforcement policy that will have severe monetary consequences for many companies. OSHA’s Hearing Conservation standard requires employers to protect employees from exposure to high noise levels—employers must utilize "feasible administrative or engineering controls" when employees are subjected to particular sound levels set forth in the OSHA standard. And, if those controls fail to reduce sound levels accordingly, employers must provide personal protective equipment to reduce exposure to allowable levels. What is at issue is the interpretation of "feasible." For almost 30 years, OSHA has allowed employers to rely on the use of inexpensive personal protective equipment such as earplugs instead of costly engineering and administrative controls (such as installing sound dampeners, reconstructing the facility to reduce noise levels, or reducing individual employee exposure time by hiring additional employees to share the load) if the personal protective equipment reduced noise exposures to acceptable levels and was less expensive than administrative and engineering controls—which is almost always the case.
OSHA recently announced that it intends to interpret the definition of "feasible" in its workplace noise standards in an entirely new way. In short, as long as administrative or engineering controls are "capable of being done" without threatening the company’s ability to stay in business, then the employer would have to implement them: it could no longer simply issue less costly personal protective equipment to employees.
While engineering and administrative controls are always preferred—they reduce noise exposure as a matter of course without relying on employees to wear their personal protective equipment—OSHA has not offered any data or evidence to support the contention that employers nationwide should be spending millions of dollars in noise reduction measures during a recession, when earplugs are just as safe and effective. Thus, if the new interpretation stands, a workplace where just one employee is exposed to an eight-hour average sound level slightly over 90 decibels may have to spend tens of thousands of dollars on equipment, guards, sound dampening equipment—or even a second employee—to reduce the eight-hour average decibel level per employee to below 90, instead of simply issuing effective hearing protection.
Perhaps sensing what a potentially explosive issue this is, OSHA did not simply begin enforcing this interpretation, but announced it as a "proposed interpretation," and requested comments on it, but was careful not to announce it as a proposed rule (which would require the agency to fulfill various requirements, such as considering the cost to employers). While the initial comment period was set to expire December 20, 2010, various industry groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce—who contend that such a change requires formal notice-and-comment rulemaking—succeeded in obtaining a 90-day extension to March 20, 2011. Any company that wishes to comment on this proposed "interpretation" may do so electronically at www.regulations.gov, by fax to 202-693-1648, or by mail to OSHA Docket Office, Docket No. OSHA-2010-0032, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Any submissions should contain the docket number, OSHA-2010-0032.