There are two reasons why it’s problematic not to know OSHA. The first reason gets the employer in trouble. The other reason gets everyone in the utility sector in trouble. Let’s begin this installment of “Train the Trainer 101” with a discussion about the first reason and why it’s important to know OSHA from the perspective of rules and regulations.
There are some realities we need to acknowledge to understand the difficulties different employers face. These are generalities based on my experience; I do not seek to classify all sectors of the utility industry as the same. It is a reality that municipalities – and the contractors who work exclusively for municipalities – are more or less late to the OSHA table because OSHA has excepted government and subdivisions of government from complying with OSHA regulations. In the past, only municipalities in state plan states were under OSHA jurisdiction. As word and experience got out, more municipalities voluntarily expanded their safety programs, and municipal associations took a role in raising the awareness and safety consciousness of municipalities that were not accountable to OSHA. However, small contractors have a resource issue. Few small contractors with under 100 employees have full-time safety personnel, and many contractors with even larger workforces have no full-time safety personnel on their larger job sites. But lack of safety on job sites is not just reserved for smaller contractors. I see large utilities with roving safety personnel who are stretched so thin that their time is mostly spent getting ready for safety meetings and newly hired employees rather than auditing crews on work sites where threat meets flesh. For a safety program to work, there must be staff who are qualified to audit the workplace, know OSHA’s expectations for employers, develop compliance strategies and the related training and written procedures, and conduct safety training. There also must be site visits to audit performance and compliance, mentor crew leaders and members, assist in job planning, and review job site documentation like tailboards and work plans. If your safety department also keeps required Department of Transportation and safety training documentation, performs investigations, and keeps injury and incident documentation, that is another full-time layer of work.
It takes all of those elements to ensure you are meeting the expectations of the OSHA standards. If you have an incident or OSHA inspection, OSHA will be looking for all of those elements. If you haven’t provided staffing and/or competent persons to ensure the safety program elements are covered, you are going to be in trouble. I know this because my consultant colleagues and I spend a lot of time helping employers navigate OSHA when the unexpected occurs. The question is, if you – as an employer – are incident free, is it because you have a good safety program in place or merely good luck? If you don’t cover the elements required for an effective safety program, it is purely good luck, and you are likely to have an incident. When that unexpected incident happens, you will be just as ill prepared to face OSHA as you were in your safety program.
In the majority of incident-related OSHA cases, employers didn’t do anything negligent or willfully violate any rules. Sometimes the issue is an injury incident with one of the company’s employees, sometimes it’s an injury incident with a contractor employee and, in the worst case, sometimes it’s a fatality. Utility employers and contractors do a pretty good job of compliance, but most are focused on following rule-based language – not on the expected outcome of the rule. The best scenario occurs when employers analyze their workforce and the work environment and create safety and training programs for the workplace. That is the goal of the OSHA rules: for employers to create a safety program that specifically addresses workers and their work environment with policies and procedures that will create a proactive safety continuum.
Many employers get stuck with their compliance ending up as a form to fill out for each rule. We see this reflected in many safety manuals that, rule by rule, are nearly repeating the OSHA 29 CFR 1910.269 standard. OSHA’s rules as written in the standard are not intended to be procedures; they are intended as outcomes or goals. If you read any of the OSHA rules closely, you can see that they don’t tell your crews how to accomplish the requirements of a rule. If your safety manual is one of those that repeats the 1910.269 standard, it can’t be very effective as a proactive tool unless you have very detailed training associated with the safety manual that tells each employee what the rule expects and how you are going to accomplish those expectations in your company. That is the first perspective of knowing OSHA.
The Second Perspective
The second perspective is knowing how OSHA operates and what to expect if they do come to your job in an enforcement action. Here is an important concept: Employers who know OSHA often head off trouble because they understand what to expect. They know the questions that are going to be asked, have the documentation that will be requested and understand the language of the statutes that drives what OSHA expects to hear. In essence, if you know OSHA, you have a very good chance of clearing up misunderstandings at the closing conference on the job site before the citations arrive in the mail. If you can’t accomplish that, the informal conference is your next opportunity. That is when consultants and lawyers who do know OSHA are brought in.
The informal conference is held before the regional OSHA area director and follows the OSHA directives to regional directors contained in the Field Operations Manual, or FOM (see www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-163_1.pdf). The informal conference is your first opportunity after citations are delivered to explain why the citations are in error and to argue your case. This is when you get to present evidence supporting a reduction in the classification of the citations, the vacating of a citation or a reduction of assessments. Don’t pass up the informal conference, and don’t go into an informal conference unprepared. Most importantly, don’t go into an informal conference without knowing the rules for OSHA as well as the rules for the employer and the regulations in effect. Lastly, don’t go to an informal conference unwilling to formally give notice of the intent to contest the violations. Following are two examples as to why this is important.
A utility consultant was working with an employer client who was facing three serious-level citations associated with an electrical contact. The citations came with a pretty hefty price tag. The employer and consultant scheduled an informal conference. According to the FOM, informal conferences are conducted by an area director who has the authority to enter agreements, reduce classifications of citations and even vacate citations. In this case, as with many electric utility cases, the inspector who conducted the incident investigation knew little about utilities, the 1910.269 standard or line work. OSHA refers to investigations as “inspections.” In this injury incident inspection, the OSHA inspector also happened to be the assistant area director. When the employer and the consultant arrived at the OSHA office, they learned that the informal conference would be conducted by the assistant area director, not the area director as provided for in the FOM. It turns out that this is not uncommon as I recently had an almost identical experience. Area directors are busy. It appears that if a case seems pretty clear-cut, the area director may allow the assistant area director to handle the informal conference. In our example, the consultant immediately noted to the assistant area director that he expected to be meeting with the area director as provided for in the FOM. The assistant area director told the employer and consultant that the area director was off-site and unavailable, and that this was fairly routine for their office. The assistant area director said he would take detailed notes and the documents provided by the employer, and that he would be communicating the discussions and notes from the meeting to the area director if there were any requests to file. In other words, the inspector who made errors regarding the investigation and citations was expected to take arguments challenging his expertise to his boss on behalf of the employer who was challenging his expertise. The informal conference did not go well. At the end of the conference, the employer gave verbal notice that they would be contesting the citations and that the written notice of contest would be forthcoming.
There was a problem, though. Later the employer became concerned about elevating the issue beyond the assistant area director conducting the conference, and they were nervous about aggravating OSHA by contesting the citations. The employer ended up letting it go, paying the fines and dropping the contest. That employer’s experience was decades without a serious incident and no fatalities. With this one incident behind them, they now couldn’t imagine another serious incident of any type in the future, but that is exactly what happened. Two years later a fatality occurred. With that incident, as with the earlier incident, there was no willful violation or negligence on the part of the employer. Everyone was devastated by the loss of the employee and we acknowledge that. But this article is about safety management, and from that aspect, the employer’s unwillingness on the previous occasion to demand their rights – and their unwillingness to contest citations that they most likely could have gotten reduced and very likely could have had vacated – made them a repeat offender with a history of serious-level citations. The result of the second incident was more serious-level citations and fines that reached almost a half-million dollars.
The FOM is not a guide. It is a set of instructions and, in fact, was just revised and reissued in September 2019. The FOM is issued by the Directorate of Enforcement Programs in Washington, D.C. At the top of the first page, the purpose of the document is stated as follows: “To provide OSHA offices, State Plan programs and federal agencies with policy and procedures concerning the enforcement of occupational safety and health standards. Also, this instruction provides current information and ensures that occupational safety and health standards are enforced with uniformity.” The section on informal conferences still instructs that informal conferences be conducted by the area director.
The Second Case
Let’s move on to the next case. An employer can contest a citation all the way to the Occupational Safety and Health Review Commission. OSHRC cases are heard by federal judges, and their decision on a case is binding. Even more importantly, OSHRC cases establish precedents that OSHA often uses to guide enforcement and claims against employers in future cases. Each side – both OSHA and the employer – uses lawyers and expert witnesses. An OSHRC case goes to trial under Federal Rules of Civil Procedure, with OSHA as the complainant and the employer as the respondent.
The case I’m going to tell you about is an example of why employers need to know OSHA and how failing to do so can have repercussions across industry if OSHA uses case law as enforcement practice. There was an OSHRC case on which OSHA and an employer had worked more than 18 months to settle contested citations related to a fatality that had occurred over two years earlier. OSHA believed they had a case, relying on their expert witness, and was unwilling to negotiate a settlement. The employer was large and had many professional safety experts and engineers as their in-house expert witnesses. When the case drew close to the trial date, the employer acquired a new third-party expert witness who informed the employer that some of the claims of OSHA’s expert witness were extra-statutory, meaning that OSHA was arguing points that could not be supported by the wording of the statutes, historical enforcement actions or interpretations of the particular OSHA standards that the citations were based upon. In the worst-case scenario, if OSHA had been successful, the outcome could have encumbered employers across the nation to adopt an almost pointless procedure or else face citations. The case was an induction fatality that occurred during construction when a worker got between a ground connection loaded with high induction current from a nearby energized 345-kV circuit. OSHA claimed the employer failed to assure the worker was protected by grounds arranged in such a manner as to ensure the worker was protected from differences in potential, and that placement of multiple grounds had led to the employee’s fatal electrical contact.
The employer argued that the crews did place grounds at the work location in an equipotential arrangement and that the employee inadvertently opened the circuit by hand, resulting in his death. OSHA’s expert argued that the employer’s failure to ensure the employees were protected arose out of the fact that the grounds had been placed without testing for equipotential and, as such, the employer was in violation of the standard.
Keep in mind here that OSHA standards like 1926 Subpart V underwent months of peer review, hearings and contests to ensure the rules and expectations of the rules are reasonable, practical and lead to a safer workplace. Despite all of that, a single errant interpretation could cost the industry millions in unnecessary work practices and equipment purchases. In this case, the industry knows well that brushing and testing of grounds connected in a particular way and arranged in a particular manner provide equipotential protection. There is no doubt across the industry that the procedures for installing grounds minimize the risk of high impedance in a connection that could cause a difference in potential. There is no statute, consensus standard, interpretation or preamble discussion involving tens of thousands of highly qualified professionals that raised a concern or ever suggested that it would be necessary, practical or even possible to verify an equipotential zone using meters.
Had OSHA’s argument about testing for equipotential survived, it could have established a requirement to test every ground connection for potential across the connections and for equipotential across the workspace, all before work could begin. The lesson is that the failure to argue your rights as an employer and a stakeholder in the industry could create precedents that affect us all.
English poet John Donne is said to have written, “No man is an island entire of itself; every man is a piece of the continent, a part of the main …” No utility is an island either. Utilities and contractors need to know OSHA to better protect themselves, their workers and their co-workers. We also need to know OSHA to understand the bigger picture. The rules for OSHA and employers establish a process to assure that the industry gets it right on both sides. As an employer, you need to have a small-picture plan for yourself and a stakeholder’s big-picture plan for the industry. The way you do that is to know OSHA.
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