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It’s Time for OSHA to Rethink “Gotcha” Mentality
What’s the best way to get employers to obey OSHA/OHS laws? What works better at promoting compliance—punishing offenses or taking steps to ensure that employers don’t commit them in the first place?
OSHA Enforcement and the “Gotcha” Mentality
Historically, OSHA has taken a “gotcha” approach to safety that emphasized punishment over prevention and random inspection over targeted enforcement. The fundamental idea was that employers were not to be trusted and had to be caught in the act.
That policy began to change in the 1990s. One notable example involved the construction industry: In 1998, the Clinton Administration began offering incentives to construction companies for finding and fixing safety problems before incidents occur.
The Bush Administration not only continued the collaborative approach but was criticized for emphasizing collaborative and voluntary efforts over traditional enforcement. The Obama Administration has discredited and rolled back voluntary programs and stepped up traditional enforcement. The Obama enforcement strategy is basically a return to the “gotcha” ways of the past.
Report: Collaboration Works Better than Gotcha
A recent report suggests that the Obama Administration enforcement approach is a huge mistake, at least in the construction sector. According to a trade group called the Associated General Contractors of America (AGC), the OSHA collaborative approach to safety has been successful. The report claims that:
- The annual fatality rate for U.S. construction projects fell from 1,171 in 1998 when collaboration began to 969 in 2008, a 17% decline;
- In 1998, there were 1.7 fatalities for every million dollars invested in construction; in 2008, the rate declined 47% to 0.9 fatalities per million dollars;
- The construction safety incidence rate declined 38% from 8.8 incidents per 100 workers in 1998 to 5.4 incidents per 100 workers in 2008; and
- The injury absence rate for construction workers fell from 3.3 per 100 workers in 1998 to 1.9 in 2008 (a decline of 38%).
Conclusion
I get that the report citing the effectiveness of collaborative enforcement comes from a contractor organization. But just because the ACG is less than disinterested doesn’t mean that we can simply dismiss the points it raises. In a world where employers outnumber OSHA inspectors by better than 50 to 1, determining the approach that most effectively encourages compliance is crucial. As safety professionals, we should all pay close attention to the experiments in collaborative enforcement that have taken place in the U.S.; and we should fervently hope that the government regulators who oversee us are doing the same.
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I am a Safety Director for a large mechanical contractor and have researched jobs that we have done in the past and I have noticed that our incident rates on jobs with OSHA Partnerships and Cooperatives have been 25 to 30% less than jobs that are not.
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VPP was created due to the 'collaborative' movement within OSHA and the results were outstanding with 'state of the art' safety programs being spotlighted & replicated. As you stated however, the return to punishment (closing the barn door AFTER the horse escapes) is a far less safe approach to Safety or any other discipline. Collaboration brings best practices to light, allows experimentation and improves the skills of both industry safety mgrs and OSHA personnel. The Dept. of Labor is doing a serious disservice to the very people it claims to protect. Apparently they do not read the very statistics they demand from us year after year!
I was thinking about this last evening, amazing timing. I wonder what would happen if every employer out there in protest made OSHA get a warrant prior to entering the workplace. Many companies have had a great cooperative approach in the past. I wonder if we all told OSHA inspectors up front, " Please do not take this personal, we appreciate you and the job that you do, but we are only doing this out of protest for the current atmosphere that has been created, If OSHA wants to be the ‘SAFETY POLICE’, they can get a warrant just like the ‘POLICE’" I wonder how much time and resources they would have to spend on getting warrants for each visit? does anyone know if that would even make a difference in time commitment?
It amazes me; even police departments do outreach and cooperative programs because they realize that it helps people to know the laws and to buy into compliance. Programs like D.A.R.E. and Crime Stoppers and others are part of that community outreach to help people get educated about the dangers. I often wonder what damage this will have on companies who have taken those extra steps to utilize the collaborative programs. Will the employees who made that commitment get the feeling that OSHA really doesn't care about their efforts anymore? I hate that the workplace has to become such a political mess when we are ultimately concerned with getting people home safely without injury and protecting the longevity of the company to keep workers employed. Granted there are some companies out there who have not got the message yet. I only hope that the companies who are investing in their people do not get bitten by the poisonous atmosphere that is being created.
We have recently experienced the approach that OSHA has begun to take.
I believe in compliance as a foundation for creating a safe work environment. I also believe in safety existing in forms that may not fit the regulatory framework that exists for the construction industry.
What I have noticed is the increase in dollars being attached to cited violations of compliance, the time frame of three years being extended to five years for the primary purpose of the 'gotcha' of repeat violations. Tying certain citations to training to set the stage for the Serious Repeat violation that can be then turned into a Willful should the agency so desire. Even ignoring the plainly stated dollar figures of an Other level citation to utilize the much more subjective wording that allows for a major increase of dollars at this lowest level citation does no more than set the stage for pulling in more money. All this while reversing the positive inclination some employers were FINALLY coming around to with respect to OSHA. This retrofitting of the SOP for the agency just set them back a good 10 to 12 years for what? To have companies refuse informals and flood the courts and attorneys with all and sundry forms of citations and violations, knowing the burden and costs at the upper levels are much more extreme, offering a better chance at some sensible outcomes for both sides.
This August will be the start of my 37th year in safety.
Currently I work for a small specialty commercial & institutional construction company that has grown to view safety as not just the right thing to do, but as a very valuable and profitability part of the organization.
In my career I have work in compliance, program development, assessment, training and management. My career has also cut across naval, fire, laboratory, industrial, chemical and construction safety.
In considering the current trends underway at OSHA, I also consider the three US Post Office Distribution Centers that were fined nearly one million dollars in the past week, with several willful citations. The Gulf Oil Rig explosion which now reveals weeks of bypassed safety equipment failures, and the priority of schedule and cost over the implementation of industry standard safety procedures. Las Vegas construction safety. Texas construction safety. New York construction safety. Trench safety anywhere in the country. Crane safety. Mining safety. The under-reporting of injuries by up to 80%.
While safety improvements in many companies greatly improved, the truth in most improvement has been at a snails pace and at the costs of far to many injuries and deaths than necessary.
In an industry such as construction, where most often it is the lowest bidder who gets the job, not the safest, or the one with the management skill set to get the job done safely, on time, on budget and profitably; it is likely that the next two years will present the greatest safety challenge to the average worker as the rule of the day will be to cut corners and just get the job done.
Or do we really need to look beyond the Louisiana Gulf Coast where in the end it maybe that time was money even on the ship with the best safety record ever, as corners were cut to save time and money.
So I understand those in the current administration who have taken a strong eye toward increased enforcement and heavier fines. I also believe that the other hand that will follow, will be one of increased training, collaboration, best practices benchmarking and an increased focus on accepted industry standards.
But if you look carefully you will see the current OSHA approach is to set the stage for a more respectful approach to safety in partnership with the both the true stakeholders to workplace safety, the employers and the employees.
OSHA's citations against the US Postal Service should serve notice to every employer, that every workplace is obligated to protect their workers from known or knowable hazards; and that is the moral, as well as, legal cost of doing business.
Until every workplace has gotten that message, the heavier hand of enforcement and, yes, targeted inspections will be the rule of the land.
[...] this moment, there are debates taking place online about whether OSHA and other regulatory bodies should be focused on fining [...]
It doesn't seem to have occurred to anyone that we're engaging in a logical fallacy here, a False Dilemma. There is no good reason for anyone (including the government) to presume this is an "either/or" issue.
There are some employers who haven't figured out that safety is cost-effective; there are some employers who need resources, help and technical support to resolve safety issues; and there are some employers who still think injuries and deaths are just part of being 'aggressive businesses'.
The notion that all these problems can be effectively addressed by "either/or" thinking simply doesn't make sense.