Hawaii OSHA Stretches the Interpretation of the Six Month Statute of Limitations

(Jan 2018)

Not long ago I was asked by a friend what the statute of limitations for issuing an OSHA citation was.  I simply replied "that's simple, 6 months." My friend told me that they had received the citation 6 months and 11 days after the violations were identified.  They immediately corrected the violations in the presence of the inspector and were somewhat relieved not to have received a citation, thinking they corrected the violations and no citation would be issued. Fast forward...an informal conference was requested, armed with the court decision and OSHA Field Operations Manual, HIOSH management clearly did not back down, citing they rewrote the rule allowing them to issue a citation in a "reasonably prudent" time frame.  My friend was worried about the cost to fight HIOSH and settled.  It is a shame that a regulatory agency would knowingly violate the employer rights even though they dropped the ball.  My fight has been taken to the Hawaii State Legislature in order to compel HIOSH to follow basic fundamental rules that are designed to protect the employers as well as employees. Had the violations serious, potentially leading to a worker death or serious injury, why would  they wait so long to issue a citation?  Do not let your guard down if HIOSH finds ways to re-interpret rules to benefit their oversight.

OSH Act of 1970 - Table of Contents

SEC. 9. Citations

(a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

(b) Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred.

(c) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.Type your paragraph here.

Incident Investigation and Root Cause Analysis...Important to Business

During an incident investigation, an employer must determine which factors contributed to the incident, and both OSHA and the EPA encourage employers to go beyond the minimum investigation required and conduct a root cause analysis. A root cause analysis allows an employer to discover the underlying or systemic, rather than the generalized or immediate , causes of an incident. Correcting only an immediate cause may eliminate a symptom of a problem, but not the problem itself. A successful root cause analysis identifies all root causes—there are often more than one. Consider the following example: A worker slips on a puddle of oil on the plant floor and falls. A traditional investigation may find the cause to be “oil spilled on the floor” with the remedy limited to cleaning up the spill and instructing the worker to be more careful.

A root cause analysis would reveal that the oil on the floor was merely a symptom of a more basic, or fundamental problem in the workplace. An employer conducting a root cause analysis to determine whether there are systemic reasons for an incident should ask:

  • Why was the oil on the floor in the first place?
  • Were there changes in conditions, processes, or the environment?
  • What is the source of the oil?
  • What tasks were underway when the oil was spilled?
  • Why did the oil remain on the floor?
  • Why was it not cleaned up?
  • How long had it been there?
  • Was the spill reported?

It is important to consider all possible “what,” “why,” and “how” questions to discover the root cause(s) of an incident. In this case, a root cause analysis may have revealed that the root cause of the spill was a failure to have an effective mechanical integrity program—that includes inspection and repair that would prevent or detect oil leaks. In contrast, an analysis that focused only on the immediate cause (failure to clean up the spill) would not have prevented future incidents because there was no system to prevent, identify, and correct leaks.

Any investigation that focuses on a true root cause analysis with an objective outcome can reduce future incidents and revenue loos resulting from accurate corrective actions. It is difficult to establish a process, which is time consuming, and look internally at your safety program or system failures.  It's easier to point a finger at an employee or human failure.  It's time to change the status quo and begin looking at the real reason an incident happened.  IT WILL REDUCE INCIDENTS AND SAVE YOU MONEY!



I recently participated in an incident investigation where an employee admitted to identifying a serious hazard, could have been deadly, and decided that is was okay to jeopardize his life with a simple statement..."It's always safe."  Is it?  This worker exposed himself to an imminent hazard putting the crew and company at great risk.  The complacent  attitude will more than likely put this employee in a situation that will cost him his life.  On the other side is the employer, with an outstanding safety track record and is known throughout the industry as a global leader in safety,Complacent?.  So you ask, why then does an employee believe that it is okay to work in an environment that will potentially cost you your life?  Easy! Buy-in!!!

The basic or "Base" of any safety culture is CONSISTENCY and without it you're destined for trouble. After an exhaustive incident investigation the root causes became difficult to pinpoint, however, we did achieve a basic understanding how and why this was allowed to happen. The mid-line supervisor didn't hold his workers accountable for following safety procedures (enabling workers to work in unsafe environment) and didn't fully grasp the dangers of working within the specific environment.  Management failed the mid-line supervisor by ignoring the known hazards and ASSUMING the mid-line supervisor had the information to lead his crew and oversee safe work.  Management did this by throwing PPE  (as a stop gap measure) at the crew causing a false sense of security and thereby fostering an unsafe work environment.

OSHA requires employers to maintain a safe work environment and eliminate known or potential hazard in order to maintain that safe workplace.  Don't get caught by ignoring the basics, properly train, educate, and identify the hazards in your workplace so that employees will see your organization as one that truly cares about their employees.  Be excellent in your safety culture.

Worker Safety Faces Increased Scrutiny From DOJ And DOL

On December 17, 2015, the U.S. Department of Justice (DOJ) announced a major new initiative to increase the number of criminal charges in worker endangerment and worker safety cases. Although the DOJ and the Occupational Safety and Health Administration (OSHA) have had a worker endangerment initiative for a number of years, the new changes are intended to bolster the likelihood and number of criminal prosecutions which historically have languished, according to DOJ, due to the OSH Act’s misdemeanor criminal provisions.

According to a memorandum issued to the 93 U.S. Attorneys’ Offices across the country, the DOJ is taking a series of actions to ramp up criminal prosecution in worker safety cases. First, prosecutors are being urged to charge other Title 18 crimes (with felony provisions) that frequently occur with OSH Act violations, such as false statements, obstruction of justice, witness tampering, and conspiracy. Second, the Environmental Crimes Section of DOJ’s Environment and Natural Resources Division is being authorized to coordinate with the appropriate U.S. Attorney’s Office to handle the investigation and prosecution of cases under the OSH Act, the federal Mine Safety and Health Act (MSHA), and the Migrant Seasonal Agricultural Worker Protection Act.

In conjunction with the memorandum, DOJ and the U.S. Department of Labor have entered into a Memorandum of Understanding designed to effectuate the changes intended to increase the number of criminal prosecutions by DOJ, as well as related amendments to the U.S. Attorneys’ Manual.

These recent changes aimed at more criminal enforcement of OSHA and related worker safety laws mirror recent changes on the civil side that will significantly increase civil penalties in OSHA enforcement cases in 2016 and beyond.their employees.  Be excellent in your safety culture.  

OSHA Regulations: 2015 has new/changing Standards

(Jan 2015)

With two years to go in the current administration, OSHA plans to create some new regulations and update some old ones.

Federal agencies just released their Fall 2014 regulatory agendas. OSHA plans to issue three final rules in 2015:
    Confined Spaces in Construction (March 2015): Although OSHA has confined space regulations for general industry, it doesn’t have rules for construction. This proposed standard would extend protections to workers in construction.
    Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips and Fall Prevention) (June 2015): This standard to protect workers from slip, trip and fall hazards has been languishing in the rulemaking process since 1990, and
    Improve Tracking of Workplace Injuries and Illnesses (August 2015): This rule would require larger employers to submit electronic versions of their injury and illness logs and make these records public.
Some other OSHA proposals in the pipeline:
    Chemical Management and Permissible Exposure Limits (PELs): On Oct. 10, 2014, OSHA issued a request for information (RFI) on how to address outdated PELs and lack of exposure limits for some chemicals. OSHA says its RFI comment period will end April 8, 2015.
    Process Safety Management and Prevention of Major Chemical Accidents: About a year ago, OSHA issued an RFI to “identify issues related to modernization of the Process Safety Management standard and related standards necessary to meet the goal of preventing major chemical accidents.”

The next step: OSHA will initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) review process. That’s predicted to start in June 2015. The SBREFA panel meets with representatives of directly regulated small businesses and offers an opportunity to provide advice and recommendations on regulatory alternatives to minimize the burden on small businesses.
    Communication Towers: The fatality rate for communication tower workers is extremely high – more than ten times the rate for construction workers. Falls are the leading cause of death. OSHA plans to issue an RFI soon on proposed regulations for these workers.
    Occupational Exposure to Crystalline Silica: This proposed regulation would update OSHA’s current rules on silica, including establishing a stricter PEL. While this proposal is in the final rule stage, there’s some question on whether the current administration will finish the rulemaking process by January 2017.

OSHA held public hearings on the proposal in 2014 and says it will finish analyzing comments from those hearings in June 2015.
    Occupational Exposure to Beryllium: OSHA expects to issue a Notice of Proposed Rulemaking (NPRM) to regulate occupational exposure to beryllium in January 2015.

HIOSH Enforcement

(April 2014)

HIOSH Is in town and enforcing Hawaii Administrative Rules (HAR) vigorously. I recently sat with Hawaii's HIOSH Administrator and learned that when it comes to citations the penalties are what they are.  There is some give during an informal conference, however, not what you think.  The areas of emphasis are hard and fast when it comes to the penalty phase.  If you are cited for lack of forklift training your penalty is not going to be reduced.  If you have a questionable citation and you can prove some defense you may be able to squeeze a reduction of the penalty.

As a former manager at HIOSH I fully understand the purpose and philosophy behind the enforcement process and employers that do not follow the minimum requirements under HIOSH can and most likely will be cited.  You can reduce the probability of being cited through the development of a written safety program and  adequate communication to employees.  This was an area, when I ask the Administrator, she gave clear guidance of the employer's responsibility.  It is the employer's responsibility to "ENSURE" the employee "RETAINS" the information within your safety program, training sessions, and HIOSH rules...in other words you can be held out of compliance if your employee does not remember your training. For example; A HIOSH inspector asks your employee where is the SDS or HAZCOMM program and they respond "I don't know" and you gave the employee training just two months earlier...YOU WILL BE CITED! The HIOSH Administrator stated that the employer needs to constantly remind employees of the rules, training, and programs relating to compliance.

Okay, not what you want to hear.  With this information you can reduce the likelihood of a citation for administrative type violations with some diligence and communicating frequently with your employees.

OSHA Emphasis Program Targets Automotive Lift Injuries

(Jan 2014)

OSHA has launched a local emphasis program in Hawaii, Guam, the Northern Mariana Islands and American Samoa that will focus on injuries and fatalaties associated with automotive lifts. If significant problems are found, it's reasonable to assume the program would be expanded to other regions.

OSHA compliance offices will begin conducting inspections to identify and  evaluate hazards of lifts used in the automotive industry. Inspections will be conducted at randomly selected sites in general operations within targeted industries, such as: automobile dealers; automotive repair and maintenance shops; gasoline stations; and automotive parts, accessories and tire stores. In addition, OSHA will respond to complaints, referrals and fatalities related to operations where automotive lifts are used."Workers
in the automotive industry are exposed to crushing hazards from
automotive lifts when servicing and repairing vehicles," said Ken Atha, OSHA's Regional Administrator in the West. "These hazardous risks can be limited by properly maintaining automotive lifts and providing workers  with effective training regarding inspection and use of lifts."

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