OSHA Pilot National Emphasis Program Showing Nearly 60 Percent Violation Rate

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An ongoing pilot national emphasis program on recordkeeping is yielding higher rates of noncompliance now that the criteria for deciding which workplaces to target for inspection have been adjusted, David Michaels, assistant secretary of labor for occupational safety and health, told BNA.

Michaels said in a Dec. 22 e-mail that the Occupational Safety and Health Administration had found recordkeeping violations in almost 60 percent of the 192 inspections it had carried out under the pilot program as of Dec. 10. That surpasses the 47 percent violation rate for 87 inspections OSHA reported in September (40 OSHR 764, 9/16/10).

Michaels did not indicate how many violations were found at each establishment or how many were considered willful.

“The program focused initially on those high hazard establishments with the lowest injury and illness rates,” Michaels wrote. “After learning much from the initial inspections, we recently readjusted the targeting criteria for new inspections to include employers with somewhat higher rates that are still below the average, as well as some larger establishments. In 2011, we will continue to focus on recordkeeping, pursuing ways to encourage employers to track and investigate workplace injuries.”

Jonathan Snare, an attorney with Morgan, Lewis & Bockius, questioned the significance of the data.

“Until you know more, it's hard to draw a conclusion about what that 60 percent finding is,” Snare told BNA Jan. 3. “You don't know whether it's a complete failure to record the name and injury and everything, or whether it's just a disagreement over whether something should be recorded and how.”

Another industry-side attorney, who declined to be identified, also said the 60 percent figure “says much too little to justify OSHA's devotion of major resources to the recordkeeping NEP.”

“OSHA's figures establish no more than it found one recordkeeping violation at an inspection of a high hazard or large workplace,” the attorney said in a Jan. 3 interview with BNA. “But if the workplace had 100 injuries, and one was mistakenly not recorded, then that is only a 1 percent error rate, which is pretty good for that kind of workplace and not much to congratulate OSHA for finding. And because OSHA's figures omit the number of willful violations found, OSHA has not shown that it is generating a deterrent effect commensurate with its effort. That OSHA says so little suggests it has not found a widespread recordkeeping problem justifying the NEP.”

Revisions to the pilot emphasis program, which took effect Sept. 28, put a greater emphasis on the manufacturing industry, larger work sites, and employers with higher injury rates than in the initial criteria. The revised program also removes certain industries, such as couriers and marine cargo handling, and adds others, including aluminum foundries and iron and steel forging (40 OSHR 845, 10/14/10).

The program seeks to uncover violations of the recording and reporting regulations under the Occupational Safety and Health Act (29 C.F.R. Part 1904).

Michaels Says Program Has Been Successful.

The pilot emphasis program, initiated in October 2009, was temporarily put on hold earlier this year so OSHA could readjust its targeting criteria (40 OSHR 671, 8/12/10).

On Oct. 8, Michaels told BNA that “OSHA did not shelve, stop, postpone, or suspend” the program and that the agency “routinely evaluates NEPs and makes adjustments after they have run for nine months to a year.”

In his Dec. 22 e-mail, Michaels said the program “has been successful at identifying and correcting under-recorded and incorrectly recorded injuries and illnesses.”

“Accurate injury and illness records are fundamental tools for employers to use to assess the status and effectiveness of their safety and health systems in the workplace,” Michaels wrote. “Effective safety programs rely on accurate injury and illness tracking. Unfortunately, studies have shown that there are many employers, particularly in high-hazard industries, who have implemented programs, inadvertently or by design, that discourage injured workers from reporting their injuries.

“Depending on the environment, workers may fear being fired if they report an injury or illness, or may be pressured by co-workers not to report in order not to jeopardize a group reward. If accurate injury records are not compiled because workers believe they will be fired for reporting an injury or illness, or supervisors fear they will lose their bonuses or their jobs if workers report injuries or illnesses, real safety is not being achieved.”

Further, in 2011, “OSHA will continue to make every effort to ensure, both through the NEP and in normal inspections, that recordkeeping is accurate,” Michaels wrote.

The pilot program is scheduled to expire in February 2012.

By Stephen Lee