New Criteria to Evaluate Effectiveness Of State Enforcement Approved by OSHA

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Following several months of discussions, the Occupational Safety and Health Administration has updated the factors it uses to measure how effectively states enforce workplace safety and health regulations.

The new list places more emphasis on how fast states respond to and investigate complaints, how they assess penalties, and whether workers accompanied compliance officers during inspections.

The changes to the “state activity mandate measures” were announced in an Oct. 11 memorandum from David Michaels, assistant secretary of labor for occupational safety and health, and took effect Oct. 1. They will be used starting with the quarterly reviews for fiscal 2013.

The measurements are:

• planned versus actual inspections;

• percent of inspections in the public sector;

• percent of inspections where establishments were found in compliance;

• average number of violations per inspection;

• average current serious penalty, with a breakout by total and size of employer;

• percent of high-hazard establishments inspected;

• percent of penalty retained after reductions;

• percent of fatalities responded to within one day;

• number of open, noncontested cases with incomplete abatement more than 60 days after citations were issued;

• average number days between an inspection's opening conference and issuing citations;

• average number of work days to initiate complaint investigations;

• average number of work days to initiate complaint inspections;

• percent of imminent danger complaints and referrals responded to within one work day;

• number of inspections where entry was denied and entry was not obtained;

• percent of safety whistleblower investigations completed within 90 calender days;

• average number of calender days to complete a safety whistleblower investigation;

• percent of safety whistleblower complaints determined to have merit; and

• percent of initial inspections with employee representation during the walk-around by inspectors or employee interviews.

When judging how states are performing, OSHA reviewers will compare the results with federal OSHA's results and expectations. For example, OSHA expects all fatalities to be responded to within one work day. Also, a state's average number of violations per inspection should be within plus or minus 20 percent of the federal average for the past three years.

The 18 new measurements replace a list of 15 data points OSHA used for previous state reviews. The new lists places more emphasis on how fast states respond to and investigate complaints, assess penalties, and whether workers accompanied compliance officers during inspections.

All the measures were discussed at a June 25 public meeting in OSHA's Washington, D.C., headquarters or in written comments submitted to OSHA (42 OSHR 735, 8/16/12).

The measures were also discussed during gatherings of a panel of OSHA and state plan officials, known as the At Least as Effective Workgroup.

More Talks.

Issuing the new criteria does not end discussions between OSHA and states on measures for determining overall state plan effectiveness, Butch Tongate, chairman of the Occupational Safety and Health State Plan Association and deputy secretary of the New Mexico Environment Department, told BNA Oct. 16.

Still on the agenda for the states and OSHA are talks focused on handling whistleblower cases and consultations for employers seeking advice.

“I expect the discussions to start in earnest early next year,” Tongate said.

In the interim, the states and OSHA will be training their staffs on the new criteria and preparing for a new review cycle that calls for the detailed “federal annual monitoring evaluation” reports to be done every other year instead of annually, Tongate said.

In response to OSHA's recently issued reports on the 27 states and territories with their own safety programs, several states objected to OSHA conclusions. (See related story.)

By Bruce Rolfsen  

Michaels's memo is available at