OSHA - OCCUPATIONAL SAFETY and HEALTH ADMINISTRATION Barbara Smith Industrial Hygienist Calumet City Area Office (708) 891-3800

Enforcement Region V Federal Illinois, Ohio, Wisconsin State Plans Except employees of “local” Government State Plans Indiana, Michigan, Minnesota

OFFICES in ILLINOIS AURORA - (630) 896-8700 CALUMET CITY - (708) 891-3800 CHICAGO NORTH - (847) 803-4800 PEORIA - (309) 589-7033 FAIRVIEW HEIGHTS - (618) 632-8612 REGION V - (312) 353-2220

OSHA at 40 Dr. Michaels’ Vision Stronger enforcement: Some employers need incentives to do the right thing. Increased Penalties Ensure that workers have a voice Refocus and strengthen our compliance assistance programs Change workplace culture: Employers must “find and fix” workplace hazards I2P2 – Injury and Illness Prevention Program

Topics Other Topics Regulatory / Unified Agenda Combustible Dust I2P2 Incentive Programs New Penalties

Combustible Dust Published ANPRM 10/21/09 Held Stakeholder meetings December 2009, Washington, DC February 2010, Atlanta, GA, April 2010, Chicago, IL June 2010 Virtual stakeholder meeting Expert Dust Forum May 13th, 2011 Next step: “Small Business Regulatory Enforcement Fairness Act” (SBREFA) Fiscal Impact Study

Issues Raised in Combustible Dust Stakeholder Meetings One size does not fit all – not all dusts are the same Differing opinions on how to define combustible dust Debate over a performance-based vs. specification-oriented standard Some did not want outright adoption of NFPA standards

INJURY and ILLNESS PREVENTION PROGRAM (I2P2)

Injury & Illness Prevention Programs – Purpose To provide tools for employers and workers to find and fix their own workplace hazards. To enhance workers’ voice in the process. Require employers to implement their own process to proactively address workplace hazards. OSHA is developing a rulemaking which would require employers to implement Injury and Illness Prevention Programs (i2P2). This rulemaking is intended to provide employers the tools necessary to find and fix their own workplace safety and health hazards. Moreover, this rulemaking is projected to enhance worker’s voice and participation in the process, as well as requiring employers to implement their own process that proactively addresses workplace safety and health hazards to reduces workplace injuries and illnesses.

State OSHA Programs with I2P2 Requirements California (CalOSHA) Washington – Division of Occupational Safety and Health (DOSH) Accident Prevention Program Minnesota (MnOSHA) A Workplace Accident and Injury Program (AWAIR)

I2P2 MODELs Cal OSHA 8CCR 3203 (Model Program Elements) Responsibility Compliance Communication Hazard Assessment Accident / Exposure Investigation Hazard Correction Training (Instruction) Recordkeeping Safety and Health Program Management Guidelines (1/26/89) VPP Elements Management Commitment Employee Involvement Worksite Analysis Hazard Prevention / Control Training (Understanding)

Injury and Illness Prevention Programs Stakeholder meetings: June 3, 2010; East Brunswick, NJ June 10, 2010; Dallas, TX June 29, 2010; Washington, DC July 20, 2010: Washington, DC August 2, 2010: Sacramento, CA Next Step: Initiate SBREFA June 2011 Currently in “Pre-Rule” Stage (Regulatory Agenda) Stakeholder meeting notes summaries link: https://www.osha.gov/dsg/topics/safetyhealth/index.html

Comments Raised in I2P2 Stakeholder Meetings The standards should be flexible yet enforceable The standards should be simple yet detailed Safety committees are effective, yet may run afoul of the NLRA Management systems are desirable, yet small businesses may not implement them Write a performance standard yet tell employers and compliance officers exactly what is required Everyone should have a written program, yet written programs tend to sit on a shelf

Incentive Programs

Incentive Programs Based on Injury / Illness Rates Managers and / or Employees Bonuses / Lunches / Hourly Incentives… Do they INHIBIT the reporting of Accidents / Incidents ?

What Are Incentives? A mechanism for inducing someone (as employees) to do something Lower DART, No Lost Time, etc Dr. Michaels – “Unfortunately, it appears that there are many employers, particularly in high-hazard industries, that have implemented programs, inadvertently or by design, that discourage injury reporting.”

Safety Incentives Gone Wrong In a Missouri food warehouse, 150 workers load and unload trucks, lift boxes, drive fork trucks, and move endless pallets Each month that no one reports an injury, all workers receive prizes, such as $50 gift certificates If someone reports an injury, no prizes are given that month But it gets worse….

Safety Incentives Gone Wrong Last year, management added a new element to this “safety incentive” program: If a worker reported an injury, not only would co-workers forgo monthly prizes but the injured worker had to wear a fluorescent orange vest for a week The vest identified the worker as a safety problem, and alerted co-workers: he lost you your prizes

Do Incentives Work… Or Not? You often get what you measure - especially when there are large financial incentives One Plant Manager received $250,000 for achieving a lower DART rate at the plant Several safety managers report it is the only criteria for bonuses up to $25,000 Management by Objective is dominant in all aspects of business Quality, Sales, Production, Safety

Dr. Michaels “If accurate injury records are not compiled because workers believe they will be fired for reporting an injury, or supervisors fear they will lose their bonuses or even their jobs if workers report injuries, real safety is not being achieved.”

Dr. Michaels “Depending on the environment, workers may fear being fired if they report an injury, or may be pressured by co-workers not to report in order not to jeopardize a group reward.”

Another Example Injured employees are put on restricted duty Then they are restricted to working only 36 hours per week This causes the employees to lose money while they are on restricted work In addition to losing hours and consequently, money, the employees cannot work or earn overtime while on restricted work So the employees counter by…..

Another Example cont. Employees on restricted work tell the company doctor they are feeling better when they are not so they can go back to full time and their regular pay It was also learned during employee interviews that employees have made deals with their supervisors to go on restricted work without telling the Nurse’s Clinic so they do not have to lose hours and, therefore, money because they cannot afford it

NEW Penalties

Increased Penalties Background OSHA penalties have not been adjusted for over two decades Work group assembled to evaluate the Agency’s penalty policies Conclusion of the work group – current penalties are too low to have an adequate deterrent effect New changes announced April 22, 2010

Administrative Penalty Changes Gravity-Based Penalty Size History Good Faith Increased Minimum Penalties Severe Violator Enforcement Program Repeat Violations Informal Conference Consideration Application of penalty adjustment factors

Gravity-Based Penalty OLD NEW High/Greater $5,000 or $7,000 $7,000 Medium/Greater $3,500 $6,000 Low/Greater $2,500 $5,000 High/Lesser Medium/Lesser $2,000 $4,000 Low/Lesser $1,500 $3,000

Size OLD NEW 1 - 25 60% 40% 26 - 100 30% 101 - 250 20% 10% 251 or more None

No reduction or increase History OLD NEW Consider previous 3 yrs 10% reduction Inspected and no SWRF citations in the previous 5 yrs Citations within the previous 3 yrs No reduction Inspected and HG citations issued in the previous 5 yrs 10% increase Never inspected or no HG citations in the previous 5 yrs No reduction or increase

Good Faith New policy will retain evaluating an employers safety and health program The additional 10% reduction for participation in a strategic partnership has been eliminated

Increased Minimum Penalties Minimum penalty for a serious is increasing from $100 to $500 Minimum penalty for a posting violation will increase from $100 to $250 if the company was previously provided a poster by OSHA

Repeat Violations OLD NEW Proposed if a final order citation in the previous 3 yrs Proposed if a final order citation in the previous 5 yrs

Informal Conference Consideration OLD NEW AD may reduce penalty up to 50% - AD may reduce penalty up to 30%. > reduction requires RA approval Greater than 50% requires RA approval - AD may offer an additional 20% if an outside H&S consultant is hired - No longer allow penalty reduction when employer has an outstanding balance owed to OSHA at this establishment or others.

Consultation Programs OSHA Resources OSHA www.osha.gov 1-800-321-OSHA (hot line) Consultation Programs 800-972-4216 / (312) 814-2337 www2.illinoisbiz.biz/osha/index.htm Indiana – INSafe (317) 232-2688 www.in.gov/dol/insafe.htm

Questions