Safety First: Consider On-Site Consultation

by Spilman Thomas & Battle, PLLC
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Although only tangentially related to oil and gas operations, the recent pipeline rupture and resulting fire near Charleston, West Virginia highlights the importance of safety inspections and the costs incurred when accidents occur. On a smaller scale but similarly important for the health and safety of your employees, the West Virginia Division of Labor (“Division of Labor”) promotes and supports a program developed by the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) called “On-Site Consultation Program” (“Consultation Program”).

Consultation Program

The Consultation Program is a voluntary program designed for small to medium-sized businesses that are considered to be in the high hazard category and are committed to improving workplace safety and health. The Consultation Program involves a FREE and CONFIDENTIAL visit by a consultant from the Division of Labor or OSHA. The consultant is trained to (a) help employers recognize hazards in the workplace, (b) assist employers in developing and maintaining effective safety and health management programs, (c) suggest general approaches or options for solving a safety or health problem, (d) identify resources available if an employer needs additional assistance, (e) provide employers with a written report summarizing findings, and (f) provide safety and health training.

An on-site visit will only occur if the employer requests to participate in the Consultation Program. In exchange for the benefits of the consultation, the employer need only commit to involve an employee representative in a workplace visit and to correct within a reasonable timeframe any “serious,” unsafe or unhealthful working conditions. The process begins with a request for assistance by the employer, after which a consultant will discuss the employer’s specific needs and set a mutually convenient date and time for a visit to the business location(s). Once at the business location the consultant will conduct an initial meeting with the employer and employee representative to explain the consultant’s role and the obligations of the employer. Then the employer, employee representative and consultant will walk through the location and examine conditions in the workplace to identify and evaluate potential hazards and physical work practices. The consultant also will review the employer’s safety and health management program. Following the walk-through, the consultant will review the detailed findings with both the employer and employee representative, including identifying sound practices as well as conditions or processes needing improvement.

After the visit is completed, the consultant will send the employer a written report detailing the findings and confirming any abatement schedules. In addition, for those situations or practices determined to constitute a “serious” hazard, the consultant will assist the employer to develop a specific plan to correct the hazard within a reasonable timeframe. In unusual circumstances where the consultant identifies an “imminent danger” during the walk-through, the employer must take immediate action to protect workers.

Benefits of Consultation Program

Because the consultants are experts at identifying workplace hazards and making recommendations to eliminate those hazards, businesses have benefited from the Consultation Program through (a) reduced worker injury and illness rates, (b) decreased workers’ compensation costs, (c) improved employee morale, (d) increased productivity, (e) elimination of hazards from the workplace, and (f) improved safety and health management systems.

The Consultation Program can lead employers to be considered for the Safety and Health Achievement Recognition Program, known as “SHARP,” which recognizes small employers who operate exemplary safety and health management programs.

A very important factor in considering participation is that the consultant will not issue citations or propose penalties for violations of workplace safety and health standards. Instead, the Consultation Program is focused on identifying and reducing risks in the work environment and it is not part of an enforcement program. Thus, it provides a cost-effective method for identifying and correcting potential violations without becoming entangled in an enforcement action.

If you need more incentive to participate in the Consultation Program, consider the potential penalties associated with workplace safety and health violations. The administrative penalty available to OSHA for “other than serious” violations is a maximum of $7,000, which may be adjusted downward by up to 95% based upon an employer’s good faith efforts toward compliance, absence of previous violations and number of employees (the smaller the number of employees the higher the available downward adjustment).

For serious violations where there is a substantial possibility that death or serious physical harm could result and that the employer knew or should have known of the hazard, a mandatory penalty of up to $7,000 for each violation is proposed. The penalty for serious violations is also subject to downward adjustment for the same reasons as for “other than serious” violations.

Where an employer knowingly commits or commits with plain indifference to the law a violation, penalties of up to $70,000 may be proposed with a minimum penalty of $5,000 for each violation. Such a penalty may be adjusted downward, but normally no credit is given for good faith.

OSHA’s workplace inspection priorities are imminent danger situations, catastrophes and fatal accidents, employee complaints, programmed high-hazard inspections, and follow-up inspections. Since employee complaints are high priority inspections following imminent danger and catastrophe situations, having an employee representative involved in a Consultation Program visit can reduce the likelihood of an uninvited inspection by OSHA or the Division of Labor. Maintaining a high quality safety and health management program can improve employee confidence in an employer and productivity.

Conclusion

If you are interested in proactively improving your safety and health management program, please review the Division of Labor website and/or the OSHA website. This may be a cost-effective way to improve the safety and health of your employees and protect your bottom line from unexpected expenses associated with workplace violations.

For more information, please contact:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

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