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The Obama administration’s focus on OSHA and other government agencies has been less about compliance and more about enforcement. For the construction industry, this means more inspections, more citations and larger fines.

Following are 13 ways a construction company can improve its safety program, reduce its OSHA citation and penalty exposure, improve profits and stay out of trouble.

1. Prioritize Vulnerabilities
Determine which OSHA construction and general industry standards apply to the project or company, as well as which of OSHA’s 140 national and local emphasis programs are applicable. For example, OSHA has placed significant emphasis on its hazard initiative, which covers falls, incidents of workers being caught in or between machinery, workers struck by equipment and electrocutions. Finally, ensure the organization is prepared to handle an OSHA inspection and that managers, superintendents and foremen know their legal rights during and after an inspection.

2. Review Recordkeeping (Especially Form 300)
Recordkeeping should be one of the cornerstones of a safety program and is a driver of OSHA’s new enforcement efforts. In addition to its recordkeeping audits, OSHA has instructed compliance officers to more carefully review the log of work-related injuries and illnesses (OSHA 300 Logs) when conducting inspections.

An employer may experience a full-blown OSHA safety or recordkeeping audit if deficiencies are found. Audit and correct the firm’s last five years of logs, looking at insurance records and “patterns” of injuries­—both of which OSHA will review.

3. Do a ‘Routine’ Audit
To issue more citations, OSHA is looking for low-hanging fruit, or more common safety and health violations such as blocked electrical panels, lack of fall protection, unsecured trenches, improper materials handling, personal protective equipment violations, recordkeeping errors and housekeeping problems. These violations can be challenging to prevent and, in the case of employers with many projects, may quickly result in multiple repeat citations.

OSHA’s focus on such routine items, as well as the use of its “egregious” policy, is generating six-figure penalties. OSHA’s new penalty calculation guidance is intended to raise the average penalty approximately 300 percent. Multi-location employers are especially at risk; only improved and consistently enforced safety rules, self-audits and supervisor accountability will reduce exposure.

4. Review Abatement
 Of Past Citations
OSHA has proposed to consider past citations for the last five years, rather than the past three years, when issuing “repeat” citations. Also, OSHA may cite an organization for “failure to abate” if it cannot document past abatements of items that are out of compliance again.

5. Prepare for Ergonomics Enforcement
OSHA has proposed adding a column to 300 Logs specifically for musculoskeletal disorders, which may include 75 percent of workplace injuries. OSHA currently is using the general duty clause to issue ergonomic citations and has announced its intention to expand enforcement. Collecting information about musculoskeletal disorders may be used by OSHA to move forward with additional ergonomic enforcement efforts.

6. Develop an Overall Safety Strategy
OSHA has proposed a standard requiring employers to develop a comprehensive safety management program that identifies all hazards and, even if there is not an applicable OSHA standard, to develop procedures and training. Under the proposal, OSHA would cite the employer for failure to create a program.

To prepare for this regulation, use jobsite data to focus on training, supervisor involvement and safety oversight.

7. Turn Good Intentions Into a Workable Plan
By developing a comprehensive safety and health management system that includes executive-level commitment and employee involvement, a company can change its safety and health culture. However, this effort requires more than a written plan.

8. Profit From Safety Efforts
Beyond reducing workers’ compensation claims, a comprehensive safety and health management program can become a profit center, allowing a company to be more competitive in the local, national or global marketplace. Connect safety to quality; use it along with sustainability and other differentiators as a marketing tool and as a way to increase employee involvement and satisfaction.

9. Develop Emergency Action Plans
Companies must maintain emergency action and response plans that focus on natural and man-made disasters. These plans should tie in with an enhanced emphasis on evacuation, exit and egress compliance, and training. Plans also should consider “non-safety” issues, such as business continuation, management of leaves and benefits, and wage-hour compliance.

10. Maintain a Wellness Plan
A wellness plan offering more than just smoking cessation benefits is essential for dealing with an increasingly older and heavier workforce. Although new employment regulations have increased the pitfalls associated with wellness programs, they can be effectively and lawfully managed.

11. Understand OSHA’s Multi-Employer Citation Policy
Recognize how contractors, subcontractors, customers and vendors can expose a firm’s employees to safety and health hazards. Additionally, a firm can be subject to citations under OSHA’s multi-
employer policy for hazards 
created by project partners.

12. Avoid OSHA’s Severe Violators Enforcement Program (SVEP)

Consider how to avoid “membership” in the SVEP and other programs that may target all or some of a company’s projects/facilities for increased inspections and scrutiny.

13. Solve Other Problems Through Safety

Involving employees in safety management can prevent many legal problems, and training and audits can correct a wide range of legal and HR vulnerabilities. For example, surveys have shown that if safety is the primary issue in union organizing drives, the union success rate is approximately 68 percent—the highest for any issue. Not surprisingly, safety problems may be a very public and embarrassing issue during labor disputes.

Use increased safety efforts to create a worksite where employees do not experience the issues that often spawn lawsuits, union organizing or other conflicts.

Edwin G. Foulke, Jr. is a partner in the Atlanta and Washington, D.C., offices of Fisher & Phillips LLP; the former Assistant Secretary of Labor for Occupational Safety and Health; and a member of Associated Builders and Contractors’ National Environment, Health & Safety Committee. For more information, email efoulke@laborlawyers.com.

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