In 2016, the Occupational Safety and Health Administration adopted new weighted inspection rules to access its enforcement activity. In the past, OSHA measured the effectiveness of its enforcement programs by counting the total number of inspections without regard to the type of inspection. In other words, OSHA gave itself credit for effective enforcement by equating an inspection of a complaint about “strange smells” emanating from a nearby office building with a fatality investigation. All inspections were weighted equally.
The 2016 change assigned “Enforcement Units” to each inspection based on the following list:
- Federal Agency Inspections – 2 EUs
- Process Safety Management Inspections – 7 EUs
- Combustible Dust Inspections – 2 EUs
- Ergonomic Hazard Inspections – 5 EUs
- Heat Hazard Inspections – 4 EUs
- Non-PEL Exposure Hazard Inspections – 3 EUs
- Workplace Violence Hazard Inspections – 3 EUs
- Fatality / Catastrophe Inspections – 3 EUs
- Personal Sampling Inspections – 2 EUs
- Significant Cases – 8 EUs
- Non-formal Complaint Investigations – 1/9 EU
- Rapid Response Investigations – 1/9EU
Effective October 1, 2019, by internal memorandum, OSHA is refining the program. In addition to assessing enforcement, these weighted standards will also be used to determine which inspections to conduct as well as which inspections are effective. In a nutshell, OSHA will devote the most time to criminal cases and significant cases (not defined) It is a federal crime for an employer to engage in a willful violation of a safety standard that results in the death of an employee, and criminal prosecutions require better evidence than is required at an OSHA citation hearing. Expect OSHA to devote more resources to these inspections.
The next group, given 5 EU’s instead of the 7 for criminal investigations, involves fatalities and catastrophes, like building collapses and crane accidents. Chemical plants get special mention.
The third group, at 3 EU’s, involves programmed inspections (namely, ones that are triggered randomly) of hazards such as trenching, power lines, scaffolds, fall protection, material handling, etc.
The fourth group, at 2EU’s, concerns programmed inspections of items like workplace violence, combustible dust, amputation hazards, and some of the more gruesome injuries that might not result in death. The fifth group at 1EU involves all other inspections.
Why is this important? I have always taken the position that an increase in the number of cases an agency is handling could show that the law is failing, rather than succeeding. If the purpose of the Civil Rights Act is to end discrimination, and the purpose of the Occupational Safety and Health Act is to increase safety, wouldn’t it make sense to want the number of discrimination cases and OSHA inspections to go down? In fact, if the laws are being effective, the agencies should just be concentrating on the most egregious cases. It appears that OSHA is doing that, favoring concentrating resources on criminal violations and dangerous industries, not just companies.