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OSHA Proposes $119,000 in Penalties Against Tree Care Firm for Worker Death
The Occupational Safety and Health Administration Oct. 25 proposed more than $119,000 in penalties against Treeman Landscaping for alleged willful and serious violations related to an accident in which a worker was electrocuted in Bethel, Pa. OSHA opened its investigation April 21 after a worker touched a high-voltage power line while engaged in tree cutting. OSHA cited two alleged willful violations for failing to provide personal protective equipment and for allowing an unqualified worker near an energized electrical line and seven alleged serious violations for failing to conduct a hazard assessment, provide protective equipment, and provide first-aid supplies.
“This company did not take the proper precautions to protect workers faced with potential electrical hazards,” Robert Szymanski, director of OSHA's Pittsburgh area office, said in a written statement. “These violations must be abated immediately to prevent another fatality.”
In addition, OSHA cited alleged other-than-serious violations against Treeman Landscaping for failing to develop, implement, or maintain a hazard communication program, maintain material safety data sheets for hazardous work chemicals, and provide training to employees on those chemicals.
Richard Kaposy, owner of Treeman Landscaping, told BNA, however, that the man who died was his cousin and a drug addict. A toxicology report performed on the man found drugs in his system at the time of his death, information Kaposy said he did not share with OSHA during its investigation.
“I took the kid under my wing and I taught him the ins and outs of tree cutting; it was an accident,” he said. “How's a small business, me and two guys, going to come up with a fine like that?”
Treeman Landscaping plans to appeal the fine, Kaposy said.
Gaps Remain, Tree Care Industry Official Says
Despite important gaps in the agency's safety regulation of the tree care industry, the citations were “justifiable” and targeted against a single bad actor, Peter Gerstenberger, senior adviser for safety at the Tree Care Industry Association, told BNA Oct. 27. While OSHA maintains sufficient standards for electrical hazards, including for general industry (29 C.F.R. § 1910.331) and for electrical personal protective equipment (29 C.F.R. § 1910.335), OSHA regulations do not address the most dangerous hazards in the tree-care industry, such as struck-by hazards and falls, Gerstenberger said.
“For this specific instance, they have very clear standards addressing this situation,” he said. “Unfortunately, once we get outside electrical hazards, OSHA has virtually no guidance.”
Electrocutions Cut in Half
Electrocutions have been cut in half over the past 25 years, and the Tree Care Industry Association has trained more than 10,000 arborists during that time, Gerstenberger said.
Nonetheless, tree service employers have lobbied for OSHA to reinstate the development of a tree care standard to the agency's regulatory agenda. OSHA removed from the rule from its latest semiannual regulatory agenda, asserting that the general duty clause and existing safety standards provide sufficient protection.
Tree care workers face real dangers not specifically addressed by those rules, however, such as falling from trees and being struck by branches, Gerstenberger said.
New OSHA Training Format Required
Secretary of Labor Hilda Solis announced earlier this year that OSHA compliance officers will start verifying that required training has been conducted in a format that workers can understand.
According to an April 28, 2010, policy statement, it is now OSHA’s position that, regardless of current regulatory language, the terms "train" and "instruct," as well as other synonyms, mean to present information in a manner that employees are capable of understanding, both in terms of language and vocabulary.
Although this was communicated in previous policies, memoranda, and training standards, the new memorandum now requires compliance officers to verify that these policies and standards are met. It notifies them that a violation may be cited as serious. To see the memorandum, click here.
For example, according to OSHA’s new policy, if an employee does not speak or comprehend English, instruction must be provided in a language the employee can understand. If the employee’s vocabulary is limited, the training must account for that limitation. If the employees are not literate, telling them to read training materials will not satisfy the employer’s training obligation.
Employers are now expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in a language other than English, they will also need to provide safety and health training to employees in the same manner.
OSHA compliance officers will now check:
- Whether workplace instructions regarding job duties are given in a language other than English and determine whether the employer already is transmitting information with comprehensibility in mind; and
- Whether the training is effective, rather than just complete, i.e., an employer may have training records but employees may not have understood the elements included in the training.
Use the following tips to make your training understandable:
- Use a bilingual instructor so that your non-English speaking employees understand the safety requirements. If that is not practical, a bilingual employee, who is proficient in safety, may prove helpful in relaying safety information;
- Give employees training materials that present the information in their native language;
- Keep it simple. If the employee’s vocabulary is limited, you now must account for that limitation. Keep training materials simple and avoid technical jargon. Have them translated, as necessary;
- Use visual aids on a daily basis. Signs, pictures, symbols, graphics, posters, and videos are a great way to relay safety information. Use them during training as well as frequent reminders in trucks and in the shop;
- Use demonstrations/document proficiency. The best way to ensure employees understand how to do their job is to show them how to do it and then verify on-the-job that they have learned how to do it.
- Offer incentives. Reward bilingual employees who help other workers not fluent in English. Also, teach English to non-English speaking employees. Over time, this may lessen the need to provide training in other languages.
TCIA has a number of products that are free to members in the member’s only section of our website to help you meet OSHA’s new policy, such as training qualification checklists. All tree care companies can purchase TCIA’s classic training materials such as the Tailgate Safety program and Basic Training video series available in English and Spanish. Browse these products online, or call 800-733-2622 to learn more.
US Department of Labor's OSHA takes action to protect America's workers with severe violator program and increased penalties
WASHINGTON — Every day, about 14 Americans fail to come home from work to their families. Tens of thousands die from workplace disease and more than 4.6 million workers are seriously injured on the job annually. The U.S. Department of Labor's Occupational Safety and Health Administration, in an effort to address urgent safety and health problems facing Americans in the workplace, is implementing a new Severe Violator Enforcement Program and increasing civil penalty amounts.
"For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA's requirements," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees."
The new Severe Violator Enforcement Program is intended to focus OSHA enforcement resources on recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law. This supplemental enforcement tool includes increased OSHA inspections in these worksites, including mandatory OSHA follow-up inspections, and inspections of other worksites of the same employer where similar hazards and deficiencies may be present. SVEP will become effective within the next 45 days. For more information, visit http://www.osha.gov/dep/svep-directive.pdf.
"SVEP will help OSHA concentrate its efforts on those repeatedly recalcitrant employers who fail to meet their obligations under the Occupational Safety and Health Act. It will include a more intense examination of an employer's practices for systemic problems that would trigger additional mandatory inspections," said Dr. Michaels.
Last year, OSHA assembled a work group to evaluate its penalty policies and found currently assessed penalties are too low to have an adequate deterrent effect. Based on the group's findings and recommendations, several administrative changes to the penalty calculation system, outlined in the agency's Field Operations Manual, are being made. These administrative enhancements will become effective in the next several months. The penalty changes will increase the overall dollar amount of all penalties while maintaining OSHA's policy of reducing penalties for small employers and those acting in good faith.
The current maximum penalty for a serious violation, one capable of causing death or serious physical harm, is only $7,000 and the maximum penalty for a willful violation is $70,000. The average penalty for a serious violation will increase from about $1,000 to an average $3,000 to $4,000. Monetary penalties for violations of the OSH Act have been increased only once in 40 years despite inflation. The Protecting America's Workers Act would raise these penalties, for the first time since 1990, to $12,000 and $250,000, respectively. Future penalty increases would also be tied to inflation. In the meantime, OSHA will focus on outreach in preparation of implementing this new penalty policy. For more information on the penalty policy, visit http://www.osha.gov/dep/penalty-change-memo.pdf.
"Although we are making significant adjustments in our penalty policy within the tight constraints of our law, this administrative effort is no substitute for the meaningful and substantial penalty changes included in PAWA," said Dr. Michaels. "OSHA enforcement and penalties are not just a reaction to workplace tragedies. They serve an important preventive function. OSHA inspections and penalties must be large enough to discourage employers from cutting corners or underfunding safety programs to save a few dollars."
Updated Employment Law Guide
As part of our efforts to keep TCIA members informed of workplace safety and health resources, you should know that the U.S. Department of Labor has posted an updated version of its popular Employment Law Guide, an online publication that describes the major employment laws administered by the Department. The Employment Law Guide helps workers and employers understand many of the laws affecting the workplace, including the Occupational Safety and Health Act. It provides workers and their representatives with information on worker rights and responsibilities under federal employment laws and helps small businesses develop wage, benefit, safety and health, and nondiscrimination policies.
The Employment Law Guide is a companion to the department’s FirstStep Employment Law Advisor, an online system that allows employers to quickly determine which federal employment laws apply to them by answering a few simple questions. Together, the updated Employment Law Guide and the FirstStep Employment Law Advisor can help employers and workers ensure safe and fair workplace policies and practices.
OSHA critic named to head OSHA
U.S. Labor Secretary Hilda Solis named House Education and Labor Committee senior policy advisor Jordan Barab as deputy assistant secretary for the Occupational Safety and Health Administration on April 8, 2009. Barab will also serve as acting assistant secretary for OSHA. He has worked for the committee for more than two years specializing in worker health and safety issues.
Prior to joining the committee, Barab worked for four years at the U.S. Chemical Safety and Hazard Investigation Board. He served as special assistant to the assistant director of Labor for OSHA from 1998 to 2001, and directed the safety and health program for the American Federation of State, County and Municipal Employees from 1982 to 1998. For several years, Barab wrote a workplace safety and health blog called "Confined Space," which was very critical of the agency and the Bush administration. No new content has been posted since Barab went to the Education and Labor Committee, but interested readers can get an idea of Barab’s views at http://spewingforth.blogspot.com/.
 to visit the OSHA Web site.
On December 29, 1970, President Richard M. Nixon signed The Occupational Safety and Health Act of 1970, also known as the Williams-Steiger Act in honor of Senator Harrison A. Williams Jr. and Representative William A. Steiger, the two men who pressed for its passage.The Act established three permanent agencies:
- the Occupational Safety and Health Administration (OSHA) within the Labor Department to set and enforce workplace safety and health standards;
- the National Institute for Occupational Safety and Health (NIOSH) in what was then the Department of Health, Education and Welfare to conduct research on occupational safety and health; and
- he Occupational Safety and Health Review Commission (OSHRC), an independent agency to adjudicate enforcement actions challenged by employers.
The OSH Act charged OSHA with assuring safe and healthful conditions for workers. When the agency opened for business in April 1971, OSHA covered 56 million workers at 3.5 million workplaces. Today, it covers 105 million private-sector workers and employers at 6.9 million sites.
OSHA's enforcement strategy has evolved from initially targeting a few problem industries to zeroing in on high-hazard industries and more recently, pinpointing specific sites with high injury rates. Education and outreach have played important roles in dealing with virtually every safety or health issue.
Congress initially gave OSHA two years to put a base of standards in place. OSHA accomplished this by adopting widely recognized and accepted industry standards. Other standards were to be issued through notice and comment rulemaking.
There are two basic types of OSHA standard:
Vertical standards affect just one industry or a small group of closely related industries
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Horizontal standards, also known as general industry standards, affect a broad swath of industries
OSHA published its first consensus standards on May 29, 1971. Some of those standards remain in effect today. Others have been updated or expanded through public rulemaking, dropped as unnecessary or overly specific, or amended to clarify their intent.
OSHA employed several enforcement strategies. Initially the agency emphasized voluntary compliance with inspections dedicated to catastrophic accidents and the most dangerous and unhealthful workplaces. Later, the agency adopted a "get tough" stance that evolved to a more targeted approach based on significant hazards. OSHA further refined its inspection targeting system in the late 1970s to focus 95 percent of health inspections on industries with the most serious problems. The agency also established special emphasis programs focused on foundries and grain elevators.
To encourage voluntary compliance and assist businesses, particularly small businesses, OSHA established free onsite consultation programs, delivered through state authorities, in 1975. The agency took its outreach efforts a step further in 1978 with its New Directions grants program. The program provided seed money to other organizations to develop and offer safety and health training to employers and employees.
In its third decade, OSHA re-examined its goals as part of the overall government reinvention process, looking for ways to leverage its resources and increase its impact in reducing workplace injuries, illnesses, and deaths.
Many standards published during the 1990s relied on a performance-oriented approach - setting specific goals for worker safety and health - but providing flexibility in how those goals were to be met. In 1994-95, OSHA promulgated two electrical safety-related work practices standards, one for general industry and one for the utility line clearance tree trimming industry. For TCIA and the tree care industry, it was the culmination of almost 12 years of effort: working with OSHA standards writers, developing model standard language in committees, testifying at hearings and providing written commentary for the public record.
The Agency continued to refine its inspection targeting system to focus on serious violators, proposing sizable penalties when inspectors found sites where safety and health problems were most serious. In 1990, Congress increased maximum penalties for OSHA violations from $1,000 to $7,000 for serious violations and from $10,000 to $70,000 for willful and repeat violations.
During the mid-1990s, OSHA began collecting data annually from about 80,000 employers in high-hazard industries to identify sites with high injury and illness rates. In 1999, the agency adopted the Site Specific Targeting Program, which for the first time directed inspections to individual workplaces with the worst safety and health records. |
