OSHA Strengthens Enforcement Efforts

In recent remarks presented at the OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION Annual Judicial Conference, Assistant Secretary of Labor (OSHA) Dr. David Michaels stated the following:

^{“In recent months we have witnessed a series of workplace tragedies: Seven workers were killed in a refinery fire in Anacortes, Washington; 29 coal miners perished in the Upper Big Branch mine in West Virginia; 11 more were lost in the Deepwater Horizon explosion off the coast of Louisiana; and when the Kleen Energy power plant construction site in Connecticut blew up, six more workers were killed… By the end of this month and the current fiscal year, OSHA will have issued more egregious and significant cases than it has at any time in the last decade. We expect to issue 19 egregious cases this year and close to 160 significant cases - including the $81 million dollars issued against BP and the $16 million dollar case against the Kleen Energy facility.”}

Is Dr. Michaels wrong? No. On average, each day, there are 12 work related fatalities in the U.S. That’s 4,340 victims per year (or the equivalent 32 fully loaded 737s crashing—imagine the outcry if that occurred). It is easy to lose track of the numbers because so many of the deaths are individual and isolated. As ethical business people we have an obligation to provide a safe work place. I wrote more about this in a recent article entitled Measuring PEO Performance for Profitability.

What Does It Mean to My PEO and MY Clients?

Accident Prevention

The National Safety Council has determined that a disproportionate number of job related deaths occur to small employers (50 or fewer employees). This may be the result of a lack of focus on risk related issues, a lack of sophistication in addressing risk related issues, or a defective company culture. PEOs are in a unique position to assist small employers in improving their safety processes, addressing hazards, and reducing injuries. Astute PEOs recognize and capitalize on this opportunity as part of their value proposition.

Injury Record-Keeping

Consider these remarks from Dr. Michaels:

^{“We are also concerned that many employers' reports of injuries and illnesses are inaccurate. Our inspections have uncovered evidence of employers discouraging workers from reporting injuries or seeking medical treatment that would lead to an OSHA-recordable incident.}

^{This is unacceptable. When worker injuries and illnesses are concealed, no investigation by the employer or OSHA can take place, so nothing is learned, nothing is corrected, and workers remain exposed to future harm. Because accurate reporting is essential to eliminating injuries and illnesses in the workplace, last October we launched a National Emphasis Program on recordkeeping to assess the accuracy of injury and illness data recorded by employers. The recordkeeping NEP (National Emphasis Program) involves inspecting worker injury and illness records prepared by businesses and appropriately enforcing regulations when we find employers under-recording injuries and illnesses.}

^{Earlier this month, we issued 83 willful citations to an employer for failing to record and for improperly recording work-related injuries and illnesses in its manufacturing facility. For this irresponsible behavior, we proposed penalties totaling $1.2 million.”}

Is your PEO maintaining OSHA injury logs on behalf of your clients? How do you ensure that all injuries are reported? Who attests to the accuracy of the OSHA log at year end? Do you really want to be caught in the middle if OSHA audits?

Worksite Liability

As a co-employer are you adequately insulated from OSHA enforcement activity if OSHA was to inspect a client’s workplace? What provisions are included in your client services agreement to shield you in the event of an inspection? OSHA has clearly stated its intent to increase inspection and enforcement activities. If you haven’t had your client services agreement recently reviewed by counsel now is an appropriate time to consider a review.

Conclusion

As a PEO owner how would you answer the following questions?

1. How effectively am I providing accident prevention (not claims management, accident prevention) assistance to my small business clients?
2. Am I prepared to provide them adequate counsel and assistance in the event a fatal accident was to occur?
3. If OSHA were to visit their workplace and they called me for counsel how would I respond?
4. Am I providing recordkeeping support to my clients? Should I continue this practice and accept the potential liability? What checks and balances have I instituted?
5. Is my PEO properly insulated from citations, penalties, or potential litigation resulting from and OSHA visit to one of my clients’ worksites?
6. When is the last time my attorney reviewed my client services agreement to identify and correct potential deficiencies/liabilities?

^{David E. Carothers is a Risk Manager and Managing Principal with Praxiom Risk Management in Tampa, FL. David is a founding and still active member of the Advisory Board to the Certification Institute for PEO Workers Compensation. He has also been a speaker at NAPEO conferences and authored several articles for the PEO Insider. Praxiom is a full-service outsourced Risk Management consulting firm specializing in PEO safety, loss prevention, claims management, and insurance placement. Praxiom works with PEO clients nationwide. Email David at dcarothers@praxiom-rm.comfor comments and questions. Click here for a full bio.}