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When OSHA Comes Calling - 03/20/2006

SOURCE: http://www.occupationalhazards.com

OSHA's list of the 10 most-violated workplace safety and health standards offers employers the opportunity to improve safety.

by Tom Anschutz

The Occupational Health and Safety Administration recently revealed the 10 most-violated OSHA standards for the 2005 fiscal year. Those standards include Scaffolding (1926.451), Hazard Communication (1910.1200), Fall Protection (1926.501), Respiratory Protection (1910.134), Lockout/Tagout (1910.147), Powered Industrial Trucks (1910.178), Electrical (Wiring) (1910.305), Machine Guarding (1910.212), Electrical (General Requirements) (1910.303) and Ladders (1926.1053).

The publication of the OSHA top 10 list serves a greater purpose to employers than merely relaying yearly statistics. The top 10 list sheds light on the enforcement policies and procedures of OSHA. By more-closely focusing compliance efforts on the top 10 standard violations, employers could eliminate employees' exposure to some serious workplace hazards and reduce their own exposure to 50 percent of the citations given each year.

OSHA has repeatedly stated that inspectors are not asked to look at any possible violation more than another. Unfortunately, logic dictates otherwise. Year after year, the same violations grace the OSHA top 10 list.

It is axiomatic that inspectors will look at hazards that are a common problem. Consequently, if compliance efforts must be limited, any increased efforts should be focused on these common violations.

OSHA makes no secret of the fact that it looks at the Bureau of Labor Statistics (BLS) data to determine illnesses and injuries common to an industry. Inspectors come into your facility knowing the top hazards in your industry. For example, 4 to 5 years ago, OSHA noticed an increase in powered industrial truck injuries. Since then, powered industrial truck violations have moved from No. 15 to No. 6 on the list of most-common violations. Employers should investigate the BLS list of illnesses and injuries common to their industries and structure their safety program and compliance efforts accordingly.

Of the top 10 violations, a full 10 percent of the citations involve the failure to establish a written safety program or the failure to provide training. Not only will establishing programs and training help to eliminate these violations, it also may alleviate many other violations that are causally related to training failure, as well as injuries and illnesses suffered by employees who are not receiving adequate training on workplace hazards. Additionally, establishing written programs and training is likely to provide protection against many willful violation claims.

All OSHA violations cannot be eliminated. However, through some very minor and comparatively inexpensive steps, a majority of the violation exposure can be significantly reduced. Employers should take a hard look at the OSHA top 10 and compare their own established policies, or lack thereof. Employers can get a head start on OSHA investigators by monitoring BLS reports on injury and illness in their industry. Finally, investment in written programs and training will provide immediate and long-term liability reduction.

Opportunities Versus Problems

Unfortunately for many employers, OSHA has become synonymous with an ominous letter or, worse yet, an unwelcome knock on the door. Employers often see OSHA more as "Big Brother" than as a valuable resource. Employers are doing themselves and their employees a disservice by thinking about OSHA in this manner.

It is often forgotten that OSHA's mission is "to ensure the safety and health of America's workers by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual improvement in workplace safety and health." The enforcement of standards is only one portion of the overall mission of OSHA. By establishing contact and partnerships with OSHA, future safety audits are much less daunting. I've always found that taking an exam for which you have studied is significantly easier.

The audit itself can be looked at as an opportunity. An OSHA visit should be looked at as a time to reinforce established safety programs and training. In my experience, it is an ideal time to rally everyone's efforts. As anyone who has participated in team sports or the military will attest, the easiest way to rally large and diverse groups is to establish common goals. Goal-oriented training and education is often more effective than once-a-quarter boilerplate OSHA instruction.

With this in mind, training should be directed toward the hazards specific to your industry. It is impossible to train and educate employees on every OSHA standard. Fortunately, OSHA has provided the ultimate cheat sheet. By focusing extra attention on the top 10 violations – especially the ones found in their industries – employers I've counseled, while not eliminating all violations, were able to severely limit possible liability.

The Top 10

The OSHA 2005 top 10 contains most of the same standards that have appeared on the list for the last several fiscal years. Scaffolding violations hold the top spot for the fourth year in a row. Ladder violations are the only new entrant to the top 10. The complete list is as follows:

1. Scaffolding (1926.451) – 2005 marks the fourth straight year that scaffolding holds the top violation spot. Scaffolding violations make up more than 10 percent of all violations found by OSHA inspectors. Employers are bound to protect employees from falls and falling objects while working on or near scaffolding at heights of 10 feet or more.

2. Hazard Communication (1910.1200) – Hazard communication violations hold the No. 2 spot for the second year in a row. Hazard communication violations account for approximately 8.5 percent of all violations. Failure to develop and maintain a written program is by far the most pervasive type of this standard violation.

3. Fall Protection (1926.501) – Employers are required to provide protection for employees working above 6 feet. Fall protection was also No. 3 on OSHA's top 10 list in the fiscal year of 2004.

4. Respiratory Protection (1910.134) – Employers are required to establish and maintain a respiratory protection program. Respiratory Protection violations have moved up from No. 5 on the 2004 list. The majority of the violations involve failure to establish a program, failure to provide medical evaluations to determine employee ability to use a respirator and failure to provide respirators.

5. Lockout/Tagout (1910.147) – This standard outlines minimum performance requirements for controlling hazardous energy during machinery maintenance. Violations of the lockout/tagout standard have shown modest improvement from its 2004 inclusion as No. 4 on the list.

6. Powered Industrial Trucks (1910.178) – Violations involving powered industrial trucks moved up two spots from last year's No. 8 ranking. The violations are heavily weighted towards training inadequacies.

7. Electrical (Wiring) (1910.305) – This standard covers the grounding of electrical equipment and has slightly improved over 2004's sixth-place ranking.

8. Machine Guarding (1910.212) – Machine guarding violations have improved since the 2004 fiscal year. However, 3.5 percent of all OSHA violations still involve failure to provide and use proper safety guarding procedures.

9. Electrical (General Requirements) (1910.303) – This standard differs from the electrical wiring standard in that it covers general safety requirements for designing electrical systems. Taken together, the two electrical violations would rank No. 4 on the list of top 10- most-violated OSHA standards.

10. Ladders (1926.1053) – This standard covers the general requirements for ladder safety. The 2005 fiscal year marks the first inclusion for ladders.

Richard Fairfax, director of OSHA's Directorate of Enforcement Programs, noted that violations per inspection have increased. Conversely, the 10 most-violated OSHA standards decreased slightly from their 2004 numbers. These statistics tend to show that employers have begun to focus on remedying the top 10 most-violated standards.

However, as the top 10 OSHA standard violations account for more than 50 percent of all OSHA violations, it is clear that more attention still must be devoted to the top offenses.

Tom Anschutz is an associate with Berens & Tate PC LLO, a labor and employment law firm in Omaha, Neb. He graduated from the University of Nevada-Las Vegas, summa cum laude, in 2000. In 2004, Anschutz graduated from the University of Nebraska-College of Law with distinction. Tom is admitted to practice in the states of Nevada and Nebraska as well as the United States District Court of Nebraska. He is a member of the American Bar Association, the Omaha Bar Association and the Nebraska State Bar Association, where he serves in the Labor Relations and Employment Law section. He practices in all areas of labor, employment, and human resource law. He can be reached at (402) 391-1991 or at toma@berenstate.com.

- Tom Anschutz