by Collin Warren and Travis Vance
As most employers know, a safety program is critical in nearly all work environments. Indeed, most employers have safety policies and procedures, employee handbooks, or some other form of written program to address safe work practices. However, many employers either purchased these programs from third parties, or wrote the programs themselves years ago. When this happens, one of three things usually follows.
- The programs are either so generic that they have no real reflection of the actual workplace.
- The programs once might have reflected the actual workplace, but the workplace has changed such that the programs are out-of-date.
- The applicable standards – whether OSHA or MSHA standards, rules, or policies – have changed, but the handbooks reflect outdated standards.
To avoid these pitfalls, employers should have a program in place that make these documents “living” documents and they should be reviewed, audited and updated on an annual basis (at a minimum).
A common example of the first scenario can be found with lock-out tag-out policies. An “off the shelf” policy might be so generic that an OSHA inspector will not accept it as compliant with the OSH Act. For example, it might not be machine specific and/or it will be so generic that an employee might not be able to effectively lock-out the equipment. In these cases, employers should be reluctant to use such generic pre-written policies. Instead, employers need to be focused on the actual work environment that exists – including the machinery that is currently in use – and have a policy or procedure that reflects the actual work environment.
Aside from the example above, an overly generic (or outdated) policy is often of little or no value from a safety standpoint. An example of the second scenario is commonly encountered when an employer takes on new work, in a new environment, and/or using new equipment. A frequent example is the employer who previously only worked under OSHA jurisdiction, but who decides to take on work that falls under MSHA jurisdiction. This could be the construction company who decides to take on work within a mine. In these instances, most safety handbooks that are purchased by employers contemplate OSHA worksites, not MSHA worksites. While there may be carry over, most employers are not in a position to manage the change between the training requirements of the two very different agencies.
The final example is illustrated by the reporting changes OSHA implemented in 2015 concerning injury and hospitalization reporting. Frequently policies are encountered that instruct employees (and employers) to report (to OSHA) hospitalizations of three or more workers. This common language is in virtually every employee handbook produced prior to 2015. As we know, OSHA changed the reporting requirement such that any hospitalization (for more than observation) must be reported within 24 hours (along with amputations, loss of eyes, etc.). Further, a more recent consideration could be workplace violence procedures and emergency action plans. In these cases, if you have an emergency action plan that does not include how employees are to handle incidents of workplace violence, like an active shooter situation, you may be in a position where OSHA might find your emergency action plan deficient (and face a citation under the General Duty Clause).
In sum, it is never too late to evaluate, change and update your policies, procedures and handbooks. Employers should routinely evaluate their safety programs to: (1) make sure that they are not so generic to be nothing more than “work safe” programs; (2) make sure these programs actually reflect the work that is being done; and (3) that they capture the current regulatory trends and changes by the agencies that govern the work they are doing.
Collin Warren is a partner in the firm’s Houston and Dallas offices and can be reached at cwarren@fisherphillips.com. or 713.292.9100. Collin has nearly 15 years of experience representing clients in state and federal courts, as well as before the Occupational Safety and Health Administration (OSHA) Review Commission, Mine Safety and Health Administration (MSHA) Review Commission, Equal Employment Opportunity Commission (EEOC) and other state and federal regulatory agencies.
Travis Vance is Of Counsel in the Fisher Phillips’ Charlotte office and can be reached at tvance@fisherphillips.com. or 704.778.4163. He has tried matters across several industries and various subject matters, including employment litigation, business disputes and matters prosecuted by the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA).
