Evaluation shows low penalties, insufficient staffing plaguing state OSHA programs

  • Thursday, September 5, 2013

SC specific observations

The average penalty imposed by South Carolina OSHA (SC OSHA) for “serious” violations is a mere $538, compared to $2,153 in federal OSHA jurisdictions and the $7,000 maximum penalty. Fatality investigations were inadequately performed. As OSHA’s FAME report notes, “Over 27 percent of fatality investigation files reviewed did not contain adequate supporting documentation and several violations were either not addressed at all or minimally.” Federal OSHA cites numerous shortcomings in S.C. OSHA’s case investigation and documentation procedures. For example: “Case file documentation consists of checklists and/or fill in the blank forms that provide little or no narrative description of the hazardous condition. Employees not always interviewed; documentation inadequate or missing; sampling forms lacked information on operations being sampled.” Violations are often misclassified as low severity rather than medium or high severity. Violations also are incorrectly rated as low probability rather than greater probability. These misclassifications result in significantly lower penalties. S.C. OSHA had one-third fewer health inspectors than required under its “benchmark” agreement with federal OSHA.

Many state workplace safety agencies are falling short in their mission of providing safety and health protections to their states’ workforces, the National Council for Occupational Safety and Health (National COSH) said after analyzing the U.S. Occupational Safety and Health Administration’s (OSHA) annual evaluations of the state programs.

Under the U.S. Occupational Safety and Health Act (OSH Act), state-run OSHA programs must be at least as effective as federal OSHA. Each year, OSHA issues Federal Annual Monitoring and Evaluation (FAME) reports that measure how state-run programs perform.

This year, federal OSHA found a wide range of problems and shortcomings in the state programs, including inadequate enforcement staffing, low fines, poor investigative procedures of whistleblower complaints, slow response to complaints and failure to verify that employers had corrected violations for which they had been cited.

“This year’s reports call into question whether workers in some states that run their own OSHA programs are adequately protected on the job,” said Tom O’Connor, executive director of National COSH. “From staffing shortages to insufficient penalties against negligent employers, some of these state-run programs fail to acceptably enforce worker safety rules.”

Consider:

A number of states have fallen far below the enforcement staffing benchmarks agreed upon between federal OSHA and the state programs, calling into question whether these programs are capable of enforcing the OSH Act in their states. Cuts to state budgets likely will further exacerbate this situation.

Many states have very low fines for serious violations, even for repeat violators in some states. But because fines are so low, many companies may factor in the penalties simply as a cost of doing business instead of ensuring safe and healthy conditions for their employees.

In a number of states, nearly all whistleblower complaints are dismissed as “without merit.” This raises doubts about whether whistleblowers who speak up about unsafe conditions are receiving adequate review and protection.

A number of states offer automatic penalty reductions for “cooperative” employers without any justification.

Some particularly egregious examples include:

• In South Carolina, the average penalty for “serious” violations is a mere $538 (compared to about $2,000 in federal OSHA jurisdictions and a $7,000 maximum penalty).

• In North Carolina, penalties for repeat violations are extremely low – averaging only $2,663, compared to $14,326 in federal OSHA jurisdictions.

• Alaska’s program has failed to meet its inspection goals for five consecutive years. This year, it fell short of its goal by 38 percent.

“The minuscule fines imposed by state OSHA programs function more as a slap on the wrist than actually forcing employers to clean up their acts,” O’Connor said. “With the maximum allowable fine already woefully insufficient, further reducing penalties against negligent – even repeatedly negligent – employers hardly incentivizes them to operate a safe workplace.”

Repeated attempts to amend the OSH Act to raise these maximum penalties – even to keep up with inflation over the decades since they were established – have failed in the U.S. Congress.

To read the state reports, visit: https://www.osha.gov/dcsp/osp/efame/index.html.

For a list of state-run OSHA programs, visit: https://www.osha.gov/dcsp/osp/index.html.

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