The art of the deal: Know how OSHA reaches settlements
OSHA has cut deals with employers and industry associations ever since the agency’s beginning. Deals with employers include:
- Informal settlement agreement (hearing at Area Office);
- Expedited informal settlement agreement (deal through the mail); and,
- Formal agreements established by lawyers et al and approved by the Occupational Safety and Health Review Commission (OSHRC).
In FY 2015, 65 percent of inspections with a citation resulted in informal or expedited settlements. An average penalty reduction totaled 41.3 percent. About 7.4 percent of cases went to the OSHRC.1
About one-third of cited employers don’t take OSHA’s deal. They just correct and pay. Will more of this group deal with OSHA in the future?
OSHA’s maximum penalties jumped 78 percent in August 2016. An approximate 40 percent “savings” that keeps thousands of dollars in an employer’s pocket may entice more employers to jump at OSHA’s informal or expedited deals.
OSHRC deals should increase over the next few years. Per the OSHRC, DOL leverages litigation resources “in favor of high-impact strategic cases.” Sometimes millions of dollars are on the table. Some companies are “nudged” into formal settlements. President Trump appointed a new a new chairman of the OSHRC in August 2017. The OSHRC may be more favorable to employers, enticing more formal settlements.
Big deals happen at the OSHRC level. Consider these two deals:
- July 2017, Cal/OSHA and Chevron (Richmond refinery)2 In addition to paying the original (January 2013) penalty of $782,700 plus an additional $227,300, among other things, Chevron will invest approximately $20 million dollars to upgrade process safety equipment and procedures that exceed current and upcoming workplace safety requirements for refineries. In exchange, OSHA will withdraw nine of the 17 violations and amend five of the eight remaining violations.
- June 2016, Ashley Furniture3: Ashley agreed to $1.75 million penalty, substantially upgrade machine safeguards, conduct third-party and internal corporate monitoring, and do other things, such as hire and retain a vice president of health and safety. In exchange, OSHA will amend, group or vacate about 40 citations.
Per the OSHRC, there are approximately 2,500 formal settlements annually. Some impact hundreds of locations through corporate-wide settlements; others may impact a single location. Because these settlements may establish new case law, among other things, nearly every workplace may feel the ripple effect.
Among the other things, consider if Chevron implements best practices beyond current or pending law; does it put pressure on similar employers to keep pace? Ashley Furniture now has a VP of health and safety. Titles are noticed, and hopefully will be adopted more frequently, within and beyond Ashley’s industry.
What’s in the deal?
Everything is in play at the OSHRC level. Issues that lack OSHA standards, such as safety and health management programs/systems, organizational communication, workplace violence, ergonomics, and heat stress are enforceable. Standards such as LOTO, confined space, machine guarding, and PSM and other typical OSHA standards may be pushed to their best practice limits (see Chevron example).
Appoint an OHS VP. Hire more OHS pros. Retain certified OHS pros. Lessen the workload on OHS (remove environmental responsibilities, for example). Align OHS program with ANSI Z10. Retain an OHS consultant and essentially do whatever the consultant says. Everything is on the table. It’s all about what each side negotiates in the deal.
There are about eight million worksites in the U.S. OSHA is a small agency with limited resources with stagnant, and even sometimes regressing, standards that cover only a fraction of hazards and risks workers face today. If OSHA knows its market, how does it use its leverage and maximize its options? Negotiating penalty dollars is one way of preventing more injuries and illnesses.
What’s often lost in this issue is that these deals are voluntary and cooperative with OSHA. If an employer doesn’t want to deal, all they must do is promptly correct violations and pay initial penalty.
Make the deal?
At the informal and expedited levels, OHS pros often suggest the best deal for the employer. Deals at the OSHRC level are mostly driven by company or outside lawyers. Regardless of any deal, both the OHS pro and lawyers must always work together. If your workplace has yet to face an OSHA deal, keep track of deals that other workplaces make.
Working in cold weather can be brutal. Sure, the dangers are the same as they were when you were a kid building a snow fort, but as an adult, working in extreme conditions for long periods of time can have more severe short- and long-term effects. Since your mom isn’t there to tell you what to wear and when to come inside, we thought we’d clue you in on some practical information to help you understand, avoid, and treat cold stress on the job.
First, it’s important to understand there are many variables to the susceptibility of cold stress. Your physical body composition, metabolism, level of activity, amount of sleep, what you’ve eaten or drank, and, of course, what you’re wearing can determine the level of danger you could be putting yourself into while working in cold weather.
Understanding these hazards and their treatments is the first step to protecting yourself.
The Hazards and Treatments:
Range of motion
is affected in cold weather by blood pumping away from limbs to increase the temperature of the torso. This can also hinder flexibility and agility in hands and feet, which limits a worker’s ability to grip or carry objects or move away from dangerous situations.
This is just the beginning of the dangers of cold stress.
can occur at or below 32°F (0°C). At this temperature, blood vessels close to the skin start to constrict, reducing blood flow to your extremities to dangerously low levels. This lack of blood leads to the eventual freezing and death of skin tissue in the affected areas. For early signs of frostbite, skin will appear white or red and can feel hard or stiff (not ideal for working safely).
- Treatment for frostbite should include moving into a warm area as soon as possible. Immerse the affected area in mildly warm water. Avoid rubbing or massaging the area or using any type of heating elements (such as a heating pad), as this could cause more damage to the affected area. The key is to slowly bring the temperature of the affected area to normal body temperature (about 98.2°F or 37°C).
is a condition in which core temperature drops below the required temperature for normal metabolism and body functions. Symptoms of hypothermia vary depending on the level of hypothermia. The four levels of hypothermia are mild, moderate, severe and critical.
The first sign is severe shivering, followed by drowsiness. Irritability, confusion, and loss of coordination are more severe signs; with slurred speech, unconsciousness and heart failure being the most severe dangers of hypothermia. Being mindful of these symptoms can be critical.
- Treatment of mild hypothermia should start by moving the victim to a warm, dry area. Remove any wet clothing, replace with warm, dry clothes and wrap in blankets. Have them drink something warm and sweet. Avoid suppressing shivering, massaging the extremities, or placing in a warm bath or shower.
If the hypothermia is more moderate to severe (core body temperature below 91.4 degrees), call 911 immediately. Be sure to handle the victim gently, check for airway obstructions, and perform CPR if no pulse present after one-minute assessment. If CPR is necessary, assist breathing at 10 to 12 breaths per minute. Do not start cardiac massage unless it can be continued effectively without a break. It is more dangerous to start, stop, and re-start CPR rather than to wait until proper care is available.
If pulse and breathing are stabilized, gently remove wet clothing and replace with dry, layered blankets. Ensure head is covered and there is something warm and dry beneath the victim. Avoid suppressing shivering, giving anything by mouth, massaging the victim, or immersing in warm water. Even if the victim appears lifeless, continue first aid treatment. The body can sometimes survive for hours without signs of life at very low body temperatures.
occurs when feet are cold and damp while wearing constricting footwear. Unlike frostbite, trench foot does not require freezing temperatures and can occur at temperatures up to 60° Fahrenheit. This condition can occur with as little as thirteen hours’ exposure. Symptoms of trench foot include tingling, itching, burning pain and swelling of the feet. More advanced cases can also include blisters and infection. We need our feet to survive - be cautious!
- To treat trench foot, move the victim to a warm area, soak feet in warm water and wrap with a dry towel.
We know that none of these sound fun, and trust us, they aren't. If you must work in cold environments, be sure you know the signs of cold stress - and prepare before you go by wearing the proper clothing and PPE.