Category: OHS Laws & Legal Compliance

Metrics Manipulation

The current news articles about the concerns raised about metrics manipulation associated with the VA Electronic Wait List reminded me of the similar concerns that have been raised about metrics manipulation related to the reporting of workplace injuries and illnesses.

One of the recurring problems with metrics is attempts to “game the system.”

Interested in finding out more?

Check out the latest issue of my Ethics in Focus newsletter – Metrics Manipulation.

This newsletter is a part of a new web-based course that ENLAR is offering in partnership with AIHA – Ethics for the OH&S Professional.  This interactive course meets the CEU training requirements set by ABIH for CIH’s to maintain their certification.

(NOTE – This edition of the newsletter also contains links to the GAO reports on the disincentives for reporting workplace injuries and the OSHA guidance on the use of safety incentive programs.  As set out in the OSHA guidance, “Reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal….”)

© ENLAR Compliance Services, Inc. (2014)
July 1, 2014 | 0 Comments More

Addressing the General Duty Clause in an OHSMS

Recently, I have noticed an increase in statements that some particular safety program or another is required because of the OSHA General Duty Clause.  Often, this statement is tied to a pitch for consulting services or to promote a fill-in-the-blank template for whatever safety program is being discussed. 

These statements are often a misrepresentation of what the general duty clause actually requires.

What is the “General Duty Clause”?

danger thin ice There is no OSHA “general duty clause” regulation.   The “general duty clause” is simply a shorthand reference to section 5(a)(1) of the Occupational Safety and Health Act of 1970 which states –

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

Over the last 40 years, there have been a number of court decisions interpreting this section of the law.  These cases have established the requirements that OSHA must be meet in order to bring a “general duty clause” enforcement action against a particular employer.  These requirements are –

  • There must be a “recognized” hazard – either actual knowledge on the part of the employer or common knowledge in the employer’s industry (for example, set out in an applicable ANSI standard);
  • There must be either an employee death or serious injury, or a substantial probability for serious physical harm, that is directly caused by the hazard; and
  • Feasible means must exist to materially reduce the hazard.

The General Duty Clause clearly is not a documentation requirement to be cited when no other OSHA regulation applies.  It is a requirement that recognized hazards need to be addressed in order to prevent serious injuries.

Since I spend much of my time drafting and using management system standards, the OSH Act “general duty clause” requirements appear to me to be very similar to the “risk assessment” and/or “corrective action” requirements set out in the various management system standards, including OHSAS 18001, ISO 14001 and ISO 9001.

These requirements are –

  • Establish processes to identify hazards and/or nonconformities (i.e. identified problems likely to cause harm);
  • Assess these and determine the need for action (analyze the probably and extent of likely harm and actions needed to reduce the risk); and
  • Take the actions needed to control the hazards and review the effectiveness of those actions.

If an organization establishes an OHS management system with robust processes that are designed to proactively “recognize” and assess hazards and then implements feasible means of addressing these hazards, it will also improve its compliance with the “general duty clause” requirements set out in the Occupational Safety and Health Act.

© ENLAR Compliance Services, Inc. (2013)
February 21, 2013 | 0 Comments More

A Job Is a Dying Concept

Dr. John Howard, Director of NIOSH, gave the keynote presentation last Tuesday (June 19, 2012) at the American Industrial Hygiene Conference (AIHce).  In his talk, he focused on 7 trends that will define the future of occupational health and safety – demography, employment, discrimination, disability, governance, standards and professionalism.  In this blog post, I will focus on one – employment trends.

As Dr. Howard put it, “A job is a dying concept.”

He went on to elaborate – In prior generations, security was what defined employment; today, it is precariousness.  Work is increasingly contingent and less secure.  There is no promise of continuous employment – or, in a great many work situations, of even being considered an “employee.”

According to Dr. Howard, this employment trend has a significant impact on occupational health and safety. Within the current legal structures governing worker protection, non-employee workers are often unrecognized and unprotected.  Both workplace safety regulations and injury compensation schemes are based on one’s status as an employee. Yet, the risk of injury or death in the workplace is not related to a legalistic definition of employment – whether you are an “employee” rather than simply an individual laboring in the workplace.

Later in the week, Mike Wallace, from the Global Reporting Initiative (GRI), gave a presentation on the evolution of sustainability reporting and the need for new metrics for evaluating organizational performance related to occupational health and safety. 

He started his presentation with the following statistic – annually 2.3 million workers die across the world. It is clear that workplaces are not safe and worker protection is often missing.

He sent on to note that, in the past, safety professionals have “stayed on the sidelines” in defining OH&S metrics for measuring organizational performance – unlike their environmental counterparts. Creating comparable metrics is often viewed as “too complex” and “too time consuming.” 

Is creating OH&S metrics really more difficult than
creating metrics to address global climate change?

GRI is currently soliciting public comment on new OH&S metrics for inclusion in the GRI reporting scheme.  Unfortunately, to date, the metrics being used, as well as those being proposed, fail to take into account the employment trends highlighted in Dr. Howard’s presentation.  In particular, they continue to link OH&S performance metrics to “employee” protection NOT “worker” protection.

In my view, what is needed is new metrics.  Metrics that are specifically developed to promote worker protection – not the perpetuation of metrics based on definitions of employment that has little relevance to today’s economic realities.

© ENLAR Compliance Services, Inc. (2012)
June 28, 2012 | 0 Comments More

Is Safety a Burden?

This post is in honor of the “Super Tuesday” elections.

Occupational safety and health is taking a hit from the politicians. 

One of the constant refrains from the Republican presidential hopefuls is that safety and health regulations are strangling business.  Or, as UK Prime Minister David Cameron put it in a recent speech – “the excessive culture of safety and health that is dragging down business like a heavy wooden yoke.”  

Are safety regulations burdensome to business?

Of course they are.

They limit what businesses can do.  Fundamentally, they transfer the costs and risks associated with being hurt on the job back to the businesses that benefit from the labor of the individuals who have been – or at risk of – being injured.

The question isn’t whether occupational injuries and illnesses have costs.  They do.

The fundamental issue is who should pay and, more importantly, when and how the costs should be incurred. 

The real question is – “Should there be costs to businesses associated with prevention of injuries and illnesses (i.e. regulatory schemes) or should the costs be incurred by the employees who are injured or killed?”

It seems that many businesses and political leaders believe there should be no prevention and workers should bear the full cost of their injuries – not employers. 

Their view – Forget about prevention; forget about compensation. 

Like the mantra of “buyer beware” for consumers, they seem prefer a culture of “worker beware” when it comes to safety.  In their view, workers should bear the risks of injury; businesses and society should not.  David Cameron put it this way – safety culture is “nothing more than a straitjacket on personal initiative and responsibility.” (For more on his rant against safety regulations click here.)

Never mind the point that many employees have little meaningful way of actually preventing workplace injuries.

To David Cameron’s real point (setting aside the rhetoric) – “Are there safety regulations that are too burdensome?”

Again, of course.

Every safety professional has his or her own list of silly regulations – requirements that do not meaningfully contribute to improving safety (i.e. reducing the risk of injury). 

HOWEVER – hyperbole is not helpful – except perhaps for politicians who want to get elected or solidify their power base.

What would be helpful is a collaborative effort to eliminate “stupid rules” AND to put in place meaningful ones.

 What’s needed are rules that save lives, prevent diseases, and, just as importantly, provide the transparency needed to actually evaluate whether companies are preventing injuries and ill health or simply transferring the costs and risks to workers, their families and society at large.

© ENLAR Compliance Services, Inc. (2012)
March 6, 2012 | 0 Comments More

Identifying Legal and Other Requirements in an OHSMS

I received a follow-up e-mail from a reader asking for additional clarification about the requirements for identifying legal and other requirements in OHSAS 18001.  Her organization has tasked her with updating their existing ISO 14001 matrix to include “OH&S requirements, aspects and categories”.  She asked whether she was wasting her time given my response to a reader’s question I posted in a previous blog about identifying legal and other requirements.

There are similarities between the requirements in the ISO 14001 and OHSAS 18001 standards.  Section 4.3.2 of OHSAS 18001 – like Section 4.3.2 in ISO 14001 – requires that an organization establish a procedure to identify its applicable legal and other requirements.  (It is important to keep in mind that a procedure is defined as a specified way of doing some activity.)

The majority of companies use some sort of matrix – often a Word table or Excel spreadsheet – to document the results of their determination of which legal and other requirements are applicable to them.  This is often called a Legal Register.  This matrix or Legal Register provides the answer to the question – “What are the legal and other requirements we must comply with?”  (Although creation of a Legal Register is a common practice, it is NOT required.  What is required is that you follow whatever your procedure says you are going to do to identify your applicable legal and other requirements.)

July 7, 2011 | 0 Comments More

Identifying Applicable Legal Requirements

Last week, I received the following question from a reader about the OHSAS 18001 requirements related to the identification of applicable legal and other requirements  –

We are an OHSAS 18001 certified company…. Our Hazard Identification and Risk assessment (HIRA) first page tells about the legal requirement clause and the legal statements for complying with the HIRA.  Our external auditor (certifying body) insists we insert a column in the HIRA chart to identify what legal requirement clause comes against the control of each identified risk.

1.     Is my auditor correct?

2.     Does the OHSAS 18001 Standards say that?

 My answer –

That is NOT an OHSAS 18001 requirement. I believe your external auditor is confusing the ISO 14001 and OHSAS 18001 requirements. 

Section 4.3.2 of ISO 14001 requires that an organization determine how its applicable environmental legal and other requirements apply to its environmental aspects.  This is often done as your external auditor suggests, although it does NOT have to be done that way.  You can use whatever method is appropriate for your organization.

Section 4.3.2 of OHSAS 18001 does NOT have the same requirement as ISO 14001. It requires that an organization “take into account” its applicable legal other requirements in its OHSMS.  No column, chart, matrix is required.  Nor does it require identifying requirements by individual risk.  This requirement was specifically rejected when OHSAS 18001 was revised in 2007.

© ENLAR® Compliance Services, Inc. (2011)
June 7, 2011 | 1 Comment More

Safety Bingo – Buyer Beware

OHSAS 18001 requires that organizations establish procedures to encourage worker participation in the OHSMS.  In some companies, worker participation is equated to establishing some sort of incentive program such as safety bingo.  The premise of many of these programs is as follows –

As long as there aren’t any reported injuries, participants in the safety incentive program have an opportunity to win a case prize. However, if an injury is reported, the game stops and the cash prize is either eliminated or substantially reduced for everyone.

Supposedly, these incentive programs build safety awareness.  Critics contend that they simply impact reporting of injuries without any underlying improvement in safety.  In other words, they drive safety reporting underground.  Interesting, based on the results of a poll conducted in June 2010 by SafetyNewsAlert, this is the view of over 60% of the safety professionals who responded.

In his keynote presentation at the AIHce earlier this month, the head of OSHA, Dr. Michaels, re-iterated OSHA’s strong disapproval of safety incentive programs that discourage injury reporting.  He went on to point out that they are also potential violations of Section 11 of the Occupational Safety and Health Act. (Click here for a related article from National Safety Council Safety+Health Magazine)

What does this mean for organizations establishing procedures to meet the participation requirements of section 4.4.3 of OHSAS 18001?

Forget gimmicks.  Put processes in place for real worker participation in the OHSMS. 

© ENLAR® Compliance Services, Inc. (2011)
May 31, 2011 | 0 Comments More

OHSMS Principles

Standards are based on principles. 

ISO 9001 is based on quality principles. ISO 19011 is based on auditing principles.  Last week, I participated in a conference call for ISO 14046 in which we discussed what principles are important to the development of a water footprint.  For this discussion we started with the sustainability principles set out in a publication entitled, Guide to Corporate Ecosystem Valuation, which was recently developed by the World Business Council for Sustainable Development.

Just as principles are important for many of the ISO standards, OHSAS 18001 is also based on several principles.

April 19, 2011 | 1 Comment More

I2P2 & Employee Engagement

Last week I gave a presentation to an industry group on OSHA’s proposed Injury and Illness Prevention Program (I2P2) rule.  In my presentation, I focused on the requirements for worker participation within an OHSMS. 

One of the questions OSHA raised in its original I2P2 proposal was –

What mechanisms have been found to be effective for enabling employees to participate in safety and health in the workplace?

Worker participation is one of the areas where there are significant differences between OHSAS 18001 and both ANSI Z10 and OSHA VPP.

OSHA VPP and ANSI Z10 focus on employee participation, as defined by the technicality of labor law.  OHSAS 18001 focuses instead on worker participation, as defined by the extent of the organization’s control over the work being performed.

March 29, 2011 | 0 Comments More