|Hazard Identification and Mitigation|
Critical Elements of Safety Management
By Adele L. Abrams, Esq., CMSP
In February 2016, the Occupational Safety & Health Administration (OSHA) notified NWPCA that the pallet manufacturing industry would be subject to a “Local Emphasis Program” (LEP) in the state of Wisconsin, focusing on the hazards associated with pallet assembly and disassembly, and the use of powered industrial trucks. The LEP for the Wood Pallet Manufacturing Industry is CPL 03-00 (LEP-028) and details of the initiative can be downloaded at http://www.osha.gov/dep/leps/leps.html#R5.
The pallet industry sector is already targeted under existing OSHA National Emphasis Programs covering amputation prevention, lockout/tagout, and combustible dust, but the new local program is another example of how the industry is now in OSHA’s crosshairs for enforcement. In the letter announcing the LEP, OSHA notes that it is critical that employers evaluate their workplaces to “identify potential hazards that may be present and implement corrective actions to protect workers from injuries and illnesses. It also highlights the need for proper employee training (and this would also apply to workers furnished by temporary staffing agencies), both prior to initial assignments, and whenever the workplace changes. Monitoring the workers to ensure that safe work practices are learned and followed is also expected by OSHA under the LEP.
When OSHA comes knocking under these emphasis programs, they will pay specific attention to safe guarding of equipment, control of hazardous energy (the LOTO program), electrical safety, wood dust, general housekeeping, powered industrial vehicles (e.g., forklifts), hazard communication, personal protective equipment, stacking of materials, and exposure to occupational noise. In other words, this will be virtually a wall-to-wall inspection covering most aspects of workplace safety and, given that OSHA penalties are set to rise from a current maximum (per citation) of $70,000 to over $127,000 starting in August 2016, a bad inspection could threaten the ability of small companies to remain in business.
Concurrent with the issuance of the targeted LEP, OSHA also released new guidelines for implementation of Safety & Health Management Programs (SHMP) in all OSHA-regulated workplaces. While the comment period on the proposed update to the 1989 SHMP Guidelines has closed, the agency is still collecting input from the regulated community through discussions at stakeholder meetings and through its federal advisory committees. While the revised Guidelines will be “voluntary” (at least at this point), OSHA is increasingly making adoption of an approved SHMP a requirement in resolving citation/penalty matters at the informal conference level – often including the provision without negotiation – or it can be a negotiated part of a corporate wide settlement agreement in formal contest proceedings. Once agreed to by the employer, the SHMP becomes an enforceable requirement in that employer’s workplace(s), and any deficiencies can be considered a failure-to-abate the original citation. This means original penalties could be reinstated, and the failure-to-abate violation can trigger additional penalties and even inclusion in OSHA’s Severe Violator Enforcement Program.
What do these two initiatives – the LEP and the SHMP – have in common? It is their emphasis on hazard identification and mitigation of any identified conditions that could present a risk of injury or illness to workers. Although the employer may not have committed to implementation of all components of a SHMP, the fact is that thorough hazard assessment is critical to maintaining a safe and healthful workplace and eliminating the exposures that violate OSHA requirements.
Without appropriate worksite evaluations, periodic audits, and prompt implementation of corrective action, the employer cannot know what potential sources of harm exist, cannot adequately train workers, and could even face criminal prosecution if a worker is killed on the job and OSHA finds there was “plain indifference” to hazard elimination. The stakes have never been higher: the Department of Labor & Department of Justice recently entered into a Memorandum of Understanding aimed at increasing the volume, and success, of OSHA criminal prosecutions.
So how can an employer get started on the hazard identification and abatement effort so that the workplace will be free from problems that could result in horrendous and costly OSHA inspections? First, it is important to understand what is involved. Hazard analysis is the first step in a process to assess risk, by identifying different types of hazards (both threats to safety and hazards to health). A hazard is basically any condition, event or circumstances that could lead to or contribute to an unplanned and undesirable event. When evaluating the workplace, consider mechanical hazards, chemical hazards, and environmental or physical agents that could harm personnel in the absence of controls. Examples include: electricity, mobile equipment, toxic chemicals, air contaminants, combustible dust and asbestos. Sometimes the terms “hazard” and “risk” sometimes get used interchangeably but they are, in fact different. Hazard is the agent that could cause harm with sufficient exposure or dose, whereas risk is the probability that exposure to a hazard would lead to a negative consequence. In other words, Risk = Hazard X Dose (Exposure). Once workplace hazards have been fully identified, a risk management approach helps to prioritize those risks with the greatest loss or impact potential, and the greatest probability of occurring. With identified hazards, the employer must determine appropriate techniques to eliminate or mitigate hazardous exposures, and then implement and monitor the controls. Don’t forget to include loss reduction measures such as sprinkler systems, alarms, and emergency action plans as part of your portfolio of corrective actions. The high hazard/high probability situations need to be addressed first, with those having lower probability or loss potential handled in descending order. However, regardless of what level of “risk” you perceive, if a condition (e.g., a moving machine part that is not fully guarded) is out of compliance with OSHA requirements, it must be fixed ASAP since the likelihood of pallet companies being inspected has increased.
There are several steps to hazard identification and mitigation. First, of course, is the identification process itself. As a practical matter, the employer (perhaps in consultation with a safety and health professional, if the company lacks in-house expertise) should walk the workplace and consider activities, processes, and substances that could injure workers or harm their health. Check equipment manufacturer instructions on things like clearing blockages in production, and check Safety Data Sheets for the latest information on chemicals used in the workplace, what maximum exposure limits are for the chemical, what ventilation might be required, and what PPE workers should use (respirators, gloves, eye protection etc.). It is helpful to examine past accident and health records to identify less obvious hazards, such as those that can cause occupational hearing loss, and remember to include non-routine operations, such as repairs, maintenance and cleaning, in your evaluation.
The employer should also consider how employees, contractors and visitors could be harmed, and it is helpful to ask employees what they consider hazardous. Also consider unique populations, such as non-English-speaking workers, new workers, and short-term temporary workers, when determining what should be included and how hazard prevention should be addressed in terms of engineering changes, work practice controls, warning signage and worker training.
OSHA will expect the employer to do everything reasonably practicable to eliminate the hazards before resorting to use of personal protective equipment. Actions will need to be taken unless they are technically or economically infeasible. While employers are not expected to eliminate hazard completely (which is impossible), all foreseeable risks should be addressed and controlled so harm becomes unlikely. This is not a one-time process, either. The hazard assessment should be reviewed periodically and revised as needed because workplaces are not static environments. Whenever new equipment, substances or procedures are introduced, changes may be needed and retraining will also be required. Hazard recognition requires a team approach: supervisors, experienced employees and also new workers should be involved. Top management must also buy into the process, and commit the resources necessary (personnel and monetary) to ensure that identified hazards that require engineering fixes can be addressed in a timely manner. If an audit identifies problems, and they have been addressed before OSHA shows up, no citations will be issued for the previously identified conditions.
Remember, once you start down the road to hazard identification, you can’t “back up.” Knowledge of the hazards identified in your audits will be imputed to management, and uncorrected conditions that violate the law can be cited as willful violations. A proactive, ongoing process to identifying and addressing hazards is a core element of SHMP, whereas failure to recognize hazards is a common root cause of workplace incidents. Safety and health management programs that are based on hazard identification and elimination can save both dollars and lives.
(Article published in PalletCentral Magazine, March-April 2016. Read this digital edition.)
Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.