An OSHA area director and, in an exclusive interview, Assistant Secretary of Labor John Henshaw give their views on OSHA inspections, working with the business community, and the satisfaction they derive from helping make workplaces safer.
On December 29, 1970, President Richard Nixon signed the Occupational Safety and Health Act. His action launched the Occupational Safety and Health Administration, known to employers and workers nationwide simply as OSHA. Today, more than 6 million U.S. worksites fall under the agency's jurisdiction; more than 100 million workers are protected by its standards.
As expansive as its breadth is its mission: to assure so far as possible every working man and woman in the nation safe and healthful working conditions. The pursuit of that goal has not been easy. The first 20 years of OSHA's existence, though not without successes, were often marked by administrative, enforcement and credibility problems.
For example, when President Clinton appointed Joseph Dear Assistant Secretary of Labor for Occupational Safety and Health in 1994, Dear told the 104th Congress that the agency's "history of setting standards has been haphazard. Priorities constantly shifted," he said. "It took many years to issue a regulation, and much of the regulated public was frustrated with both the process and the outcome." Dear added that a common employer complaint was that OSHA seemed to care less about worker protection than about meeting quotas for citations and penalties.
If you experienced an OSHA inspection in the 1970s or '80s, you might have agreed with Dear's assessment. While OSHA has never used quotas for its inspectors, it's reputation as an inflexible enforcement and punitive body was well known. Confronting the agency's notoriety, Dear initiated the idea of leveraging its resources through not only enforcement, but interaction with internal health and safety committees, private-sector consultants and trade associations.
Today the concepts of alliances and partnerships are among OSHA's core methods for achieving the agency's mission. John Henshaw, the current Assistant Secretary of Labor for Occupational Health & Safety, reiterated these ideals when he announced OSHA's 2003-2008 Strategic Manage-ment Plan last May. The Plan also calls for OSHA to streamline its own organization in order to obtain the maximum effect from the resources it has. (Read IMPO's interview with Assistant Secretary Henshaw following this story.)
If you still fear a visit from your local OSHA inspector, however, you're not alone. While such a visit is likely to not be as painful as it once might have been, "Most people still have some fear, even if they never deal with us," says Phil Peist, an OSHA area director based in the Parsippany, NJ, office. "Or they've heard something," he says. "Somebody knows somebody who knows somebody who was put out of business because of OSHA. If you track it down, though, you find it's not true."
|Phil Peist in his New Jersey office. The Region 2 area director says OSHA has changed for the better since he began with the agency 27 years ago.|
Peist says employers in his area still take issue with the content and enforcement of the Occupational, Safety and Health Act, "But now they give us good marks for the professionalism and knowledge of our staff."
Much of the credit for this change in attitude, he says, goes to the Clinton administration's initiative to reinvent government. Assistant Secretary Dear redirected OSHA's employer penalty system toward collaboration among the agency, employers and labor. The shift directly impacted Peist's job. "As manager of the OSHA program in my area," he says, "I now not only manage my staff and resources, I communicate with the public, employers, the unions and public-interest groups."
Peist oversees 20 employees, including eight safety inspectors, six industrial hygienists and a compliance-assistance officer. The main function of his group, says Peist, is to enforce the Occupational Safety and Health Act and to ensure compliance. Most of their time is spent on inspection. Half of the inspections are industrial, and half are construction-related, a proportion that matches national trends, says Peist. He notes that while much heavy manufacturing has moved away from his territory, Essex and Hudson counties, nearer to New York City, still have a strong industrial base. Peist says his team conducted 424 inspections for fiscal year 2002 (October 1, 2001 to September 30, 2002), which "is nowhere near the number of manufacturing facilities in the area."
Peist's team performs both planned and unplanned inspections. Planned inspections are determined by requirements set forth by OSHA regulations. For example, industries that have lead, silica or amputation hazards in their manufacturing processes are always on the list to be inspected. Other planned inspections include companies with high accident rates. "Any company with reported accident rates two times the national average may get inspected," says Peist. "Those with reported accident rates four times the national average will very likely be inspected."
But even in these circumstances, an inspection is not guaranteed, says Peist. His office receives a random, computer-generated list of companies that should be inspected, he says, but resource restrictions prevent his team from visiting as many as probably should be seen.
Time must also be left for unplanned inspections. According to Peist, about half of the OSHA inspections in his territory are unplanned, prioritized by urgency. "Our first inspection priority the one we will do no matter what, within 24 hours of the complaint is what we call imminent danger," he says. "Regardless of the source, if we get a report that a factory with flammable, combustible liquids, with a history of fires, has its exits locked, we will inspect immediately."
A fatality or catastrophe will also trigger a priority inspection. OSHA defines catastrophe as an event that results in three or more employees being hospitalized. "We did about nine of those last year," says Peist, "and we're running about the same rate this year."
The next type of priority inspection is one in which an employee signs a complaint alleging hazardous conditions. The complaint must be specific, such as locked exits or machines without guards in place. Last year, the Parsippany office had about 80 such complaints and 100 reports of accidents or referrals from other agencies. OSHA will also consider inspections based on newspaper and police reports of serious injuries in the workplace.
Follow-ups make up about 10% of the total number of inspections done each year. These include inspections made after citations are issued, when the OSHA team will return to a site to ensure compliance and monitor long-term remediation.
Peist emphasizes that an OSHA inspection does not always result in a citation or penalty. About 20% of his team's inspections do not, he says, and another 5% result in citations without penalties. "If it's a large plant and we do a wall-to-wall inspection, the chances of us finding instances of noncompliance are reasonably great. If we get a signed complaint - no exit signs, dirty bathrooms - and we go there to find improved conditions, there will be no citations or penalties."
OSHA now gives employers five days to respond to a complaint before they inspect. A citation or penalty can be avoided if the employer responds with a clear explanation that there is no condition or that an illegal condition has been corrected.
When issued, penalties are based on hazard and probability. The highest single-instance penalty is $5,000 for a violation that could cause permanent injury and death. "If all exits in a factory are locked and there are flammable liquids present," says Peist, "the probability for serious injury is high, so there would be a high penalty. If there are conditions that could cause someone to trip, the penalty may start at $1,500."
In Peist's jurisdiction, the most common types of violations are related to lockout/tagout programs and machine guarding. These are followed by hazard communication and training.
While monetary penalties remain a very real OSHA enforcement tool, today there are many ways offending companies can avoid them. "During inspections we provide technical compliance assistance," says Peist. "We may also provide program reviews, and we can go out and train."
Outreach, as this side of the job is called, symbolizes the "new" OSHA, and involves many efforts outside of the inspection scenario. "We'll go to an industry and ask, 'How can we work together? What can we do to get the word out?'" says Peist. His office has established alliances with local business groups, such as the New Jersey Indus-trial Business Council, a consortium of Parsippany-area chambers of commerce. Peist meets with group members quarterly, and gives presentations about OSHA outreach efforts and programs.
"Partnerships and alliances are a non-enforcement mechanism that an area director gets involved in day-to-day," says Peist. Partnerships and alliances also provide a network for individuals to voice their complaints to OSHA through their own organization if they are apprehensive about approaching OSHA directly. Through partnerships and alliances, OSHA can leverage its resources and reach the most people in the most efficient manner.
"If I sign an alliance with the New Jersey Chamber of Commerce," says Peist, "I can do a presentation for them and reach 200 people. That will have an effect. If we only did enforcement inspections," he says, "we would never have reached those same 200 people."
Another non-enforcement option a plant manager has for maintaining a safe and healthy workplace is the OSHA Voluntary Protection Program (VPP). This 20-year-old program was created to actively assist and encourage companies to maintain workplaces with world-class safety and health characteristics. OSHA will provide consultation, mentors and application reviews of interested companies. If accepted into VPP, the company will benefit from national recognition for its safety and health policies, and is excused from programmed inspections.
"The goal is to get as many people into VPP as possible," says Peist. "The logic is that once they get in, they'll talk about accident rates dropping" and develop a long-term company culture that embraces safety and health. To date, VPP is working well: According to OSHA, VPP worksites have a lost-workday incidence rate of 52% below the average for industry.
VPP and other OSHA partnership and alliance programs have become important tools for building better relationships between business and the agency. "Our goal is to reduce accidents and injuries in the workplace," says Peist. "And we will work with those who want to work with us. We want the employer to figure out how to best work with OSHA. If you want traditional enforcement, we'll do it that way. But if you want help, if you want to enter the VPP, if you want someone to mentor you, we'll find someone. If you are a small employer and want a free consultation, we'll bring someone in. If you're a larger employer or employer association and want to enter into an alliance or partnership with us, we'll do so."
Peist believes that under Assistant Secretary Henshaw, priorities have shifted even more toward outreach, training and forming alliances and partnerships. Though it means more work for his team, Peist says his job is "very rewarding. The end result is that when you walk out of a plant, the place is better. Somebody, although you'll never know for sure, is going to go home in one piece who might not have."
The biggest challenge of his job, says Peist, is "getting people to understand the value of not getting hurt, and not just monetarily." Having seen hundreds of dangerous plant conditions, Peist says many plant managers still don't comprehend that the emotional toll of an accident or death can be far more devastating than any fine OSHA could levy against them.
"But OSHA is a third party that can step in and help them understand the all-important issues of health and safety," says Peist. "And when the process is complete," he adds, "the employee and, sometimes, the employer, will thank us."
Interview: John Henshaw, Assistant Secretary of Labor for Occupational Health & SafetyAssistant
Secretary Henshaw: The purpose of the new plan is to ensure that we direct our resources in a unified way to accomplish significant issues in worker safety and health. It's an attempt for us to analyze the landscape, then align all of our processes to get the biggest impact we can for the resources we have. It's a five-year plan that identifies all the major areas we're addressing. It's balanced in the sense that it deals with the various interventions we're undertaking, enforcement, our outreach, and our education and voluntary programs. It also deals with our staff and how we are going to improve as an organization. We want to get the best utilization of our resources that we possibly can, to develop the synergies across the various directorates and regions. It's the first time we've covered all of these aspects.
IMPO: As you approach the two-year mark in your post, what do you consider your top accomplishment so far?
Secretary Henshaw: I'm not sure I can pick a top accomplishment. To me, this means that we're done, and I don't want to imply that. We have a lot more work to do. But I think we've been successful in demonstrating that OSHA can exercise various tools to accomplish the result, which is injury, illness and fatality reduction. We've demonstrated we can have strong enforcement, and, at the same time, focus on compliance-assistance and improve our cooperative programs. We've proven we can do these three strategies, and that these three in combination produce a bigger impact than if we just did one alone.
IMPO: Do you sense that there was doubt about the agency's ability to do this in the past?
Secretary Henshaw: I think there was some doubt that the public or the regulated community would embrace it. I think there was doubt we could get the kind of partnerships and alliances and interest in the collaborative efforts that are underway. Now I think the regulated community and other stakeholders are beginning to see and are sold on the idea that we can accomplish an awful lot by working, in some audiences, in a collaborative way, in some audiences in a compliance-assistance way, and, unfortunately, in some audiences, through enforcement.
IMPO: How would you describe the current relationship between OSHA and U.S. manufacturers, and what, if any, improvement in this relationship would you like to see?
Secretary Henshaw: I think there has been a lot of improvement. I think they see us as being results-oriented and able to recognize that there are many ways to get that result, as opposed to just the regulatory and enforcement side. A lot of informed manufacturers see that we're not just looking at activities, we're actually looking at the impact on safety and health. Not everybody's there, of course, and we need to get that idea across. I spend a lot of time trying to get that idea across to our stakeholders, including manufacturers. I'll be meeting with manufacturers in various parts of the country this week, trying to convey to them that there's value to their business as well as to the safety and health of individuals if we work in a collaborative way and do this right.
IMPO: How can interested parties attend your regional meetings?
Secretary Henshaw: If I'm going to be at a particular location, I'll contact an association like NAM [the National Association of Manufacturers] and say that if they have affiliates who are interested in meeting, I'd like to meet with them. I also contact local chambers of commerce and other organizations where business owners and workers may gather. I want to know what's going on. We're not trying to pick attendees. We're inviting anyone who wants to attend to come and voice their opinions.
IMPO: What manufacturing industry would you say needs the most help from OSHA or is the farthest behind in terms of safety and health?
Secretary Henshaw: I hesitate to give you names, but certainly we know that the construction industry has a high incidence of fatalities. The service industry is another one we have to focus on, not for fatalities, but for injuries and illnesses. And there's an influx of immigrant workers coming into those areas that concern us only because they're new to our culture with respect to safety and health. We want to ensure they understand that the employer is responsible for safety and health and that they have a right to a safe workplace.
IMPO: How does OSHA communicate with these workers?
Secretary Henshaw: We have a number of publications in Spanish, a Spanish Web site and an 800 hot-line in Spanish, so Spanish-speaking individuals - employers and employees - can call and get more information. Do we have enough? No, we have to do more, but we're always looking for ways to partner with different groups to help us approach and address the language issues, not just Spanish, but other languages as well.
IMPO: Ergonomics has been a tough issue for many manufacturers. How have they responded to OSHA's request for input on the subject?
Secretary Henshaw: Fairly well. The latest one we announced was the development of our shipbuilding ergonomics guideline, and the shipbuilding associations - the manufacturers - stepped up and said they would help us develop it. Even some of the trades stepped up and said they would help. So I think we're getting good cooperation and support for the guidelines.
IMPO: Do you sense that manufacturers realize the importance of the ergonomic guidelines?
Secretary Henshaw: I think they do. They also recognize that these guidelines are voluntary, but that if they adopt them, or some other process, and show a good-faith effort to reduce ergonomic injuries, it's good for them, it's good for OSHA, it's good for workers, and, more than likely, they won't be subject to any kind of enforcement from OSHA. I think they realize it behooves them to take these guidelines, or any other guideline they choose as long as it's successful, and reduce injuries associated with ergonomic factors.
IMPO: What key challenges do you see for OSHA in the next five years?
Secretary Henshaw: There will be what I call political challenges, with respect to those that may drive one agenda or another. I'm not talking about political parties, I'm talking about individuals and groups. We need to address those and not allow them to derail us. An organization as large as OSHA - any organization - has to be flexible enough to not be derailed by things that aren't going to give them the maximum degree of impact for what they set out to do. Our biggest challenge is to not let these issues overwhelm us. We have to stay focused and on target. We have to be results-oriented, not activities-oriented. We have to measure how effective we are on an ongoing basis, so we can fine-tune our process to get the maximum impact for the resources we have, then evaluate how we've done.
IMPO: Is this something you can control from your position or does this depend on broad-based cooperation?
Secretary Henshaw: The administrator has to make sure that the fires of the day do not get out of control, that the organization stays on target and optimizes its resources. This means being a buffer, being a spokesperson and exercising leadership.
IMPO: How are you enjoying the role of buffer, spokesperson and leader so far?
Secretary Henshaw: I've certainly enjoyed the people I'm working with in OSHA. I'm enjoying that immensely. I didn't appreciate the quality of people we have until I was in the organization. I've enjoyed the kind of results we can achieve as a team, which is one of my key efforts: to create a very strong team environment. I've also enjoyed a lot of the stakeholders who have embraced this effort and who understand that safety and health really add value. That's very rewarding. It makes it all worthwhile, knowing how many lives we can save and how many injuries and illnesses we can avoid. That's what drives us to be successful. Obviously, there are drawbacks. There are the ones who give you the pain here and there, but no pain, no gain, so I guess you have to have some of that. If you didn't, the successes wouldn't as worthwhile as they are.
Rick Carter, Editor-in-Chief