Injury and Illness Prevention Program
East Brunswick, NJ
June 3, 2010
Meeting Summary Report
Table of Contents
4.1 Possible Regulatory Approaches
4.2 Scope and Application of a Rule
4.3 Organization of a Rule
4.4 Economic Impacts
4.5 Additional Comments
Injury and Illness Prevention Program
East Brunswick, NJ
June 3, 2010
Meeting Summary Report
This report summarizes the key points made during the June 3, 2010, Injury and Illness Prevention Program stakeholder meeting conducted by the Occupational Safety and Health Administration (OSHA). The meeting took place from 8:30 a.m. to approximately 4:00 p.m. at the Hilton Hotel in East Brunswick, New Jersey. The purpose of the meeting was to obtain information from a diverse range of stakeholders that could be used to help develop an Injury and Illness Prevention Program rule, which will reduce workplace injuries and illnesses by requiring employers to implement injury and illness prevention programs. These programs would use systematic approaches to proactively address safety and health hazards.
A notice of the stakeholder meeting published in the Federal Register (Volume 75, Number 85, pages 23,637-23640) on May 4, 2010, informed potential attendees that pre-meeting registration was required. The notice also briefly summarized injury and illness prevention programs and current standards, outlined the topics for meeting discussion, and explained meeting logistics (e.g., number of attendees that can be accommodated, meeting times and location). The East Brunswick meeting was the first of three (later expanded to five) scheduled Injury and Illness Prevention Program stakeholder meetings. Attendees were designated as either participants or observers. In total, 35 participants and 41 observers attended the meeting. Participants were seated along with OSHA representatives in a roundtable format. Observers occupied rows of chairs behind the participant area.
Participants included employer and labor representatives, consultants, safety and health professionals, industrial hygienists, academics, and members of occupational safety and health public interest groups. Participants were entitled to provide verbal comments throughout the meetings; observers were not allowed to comment during the meeting until the final session had completed, at which point OSHA entertained questions and comments from observers.
Eastern Research Group, Inc. (ERG) provided logistical support for the stakeholder meeting, and an ERG technical writer attended the meeting and prepared this summary report. This report captures the main discussion points raised by stakeholders during the meeting, including remarks made by individual stakeholders, but is not a verbatim meeting transcript. No portion of this document reflects or should be considered to represent the viewpoints or opinions of ERG.
All participants were asked to introduce themselves by stating their name and affiliation. Following the participant introductions, the OSHA panelists introduced themselves. OSHA representatives in attendance included Dorothy Dougherty, Mike Seymour, Dave Wallis, Mark Hagemann, Bryan Seal, and Luis Martinez from the Directorate of Standards and Guidance; Paul Bolon from the Office of Regulatory Analysis; and Robin Ackerman from the Office of the Solicitor.
Dorothy Dougherty, the Director of the Directorate of Standards and Guidance, provided the introduction to the meeting. Ms. Dougherty welcomed the attendees and emphasized that OSHA's goal for the meeting was to have an open discussion to hear stakeholder opinions about Injury and Illness Prevention Program and to gather information to help in forming a rule. She stressed that the discussion should not be considered a hearing or a formal meeting. OSHA realizes that all stakeholders have busy schedules and is thankful that each attendee took time to participate in the meeting. The Directorate of Standards and Guidance is in charge of developing occupational safety and health standards. Information and data provided by stakeholders is essential to creating meaningful, effective standards. Ms. Dougherty encouraged stakeholders to remain involved as the rule is developed. The rulemaking process can be lengthy, and public participation is welcomed at every step. Prevention programs such as OSHA's Voluntary Protection Program (VPP), OSHA's Safety and Health Achievement Recognition Program (SHARP), consensus standards such as ANSI/AIHA Z10 and OHSAS 18001, and state-run programs are effective models for improving worker safety and health. OSHA believes that introducing Injury and Illness Prevention Program regulations would help to decrease the number of worker fatalities and reduce the occurrence and severity of injury and illness. Ms. Dougherty stressed that the creation of an Injury and Illness Prevention Program rule is a high priority, and the stakeholder meetings are very important to drafting a rule. Different members of her staff would be directing questions throughout the course of the meeting, she said, to focus the flow of information. OSHA was pleased with the number and variety of attendees and looked forward to a productive meeting and future collaboration on rulemaking.
Mike Seymour of the Directorate of Standards and Guidance joined Ms. Dougherty in welcoming everyone to the meeting. Mr. Seymour remarked that he knew many of the participants by name or reputation, and he was confident that the discussion would be highly informative. Mr. Seymour said that an Injury and Illness Prevention Program rule has the capacity to change both the physical workplace and its culture. Injury and Illness Prevention Program would apply to small and large businesses alike, and be flexible enough to apply to different types of industries and hazards. OSHA can only meet this challenge with support of the stakeholders around the table-and continued dialogue in the future. The agency is interested to learn what has worked and what has not worked with safety and health management systems. Mr. Seymour acknowledged that some stakeholders had made requests to change the agenda of the meeting. He said that, although OSHA appreciates the concern and input of these stakeholders, the agenda had not been changed because it was a logical way to gather the information OSHA wanted. Finally, Mr. Seymour concluded that the Directorate of Standards and Guidance feels that an Injury and Illness Prevention Program rule is particularly important, and that accomplishing the goal will only be possible with continued assistance from the public.
The meeting facilitator, Ms. Elizabeth Vasquez of Management Consulting Associates, explained the format and logistics of the meeting. Ms. Vasquez noted that the meeting was informal and that participants should speak freely. OSHA was not at the meeting to answer questions from the public, she noted, but rather was there to listen and consider stakeholder comments and questions as guidance in writing the standard. She pointed out that prepared written statements should not be read from during the meeting, though documents could be submitted to OSHA following the meeting for consideration. Ms. Vasquez encouraged participants to keep their comments short to allow time for more people to be heard. She noted that the meeting was being recorded, but that the summary report (to be published on www.osha.gov in the next several weeks) would not attribute comments made to specific stakeholders. Ms. Vasquez did inform the participants that members of the press were in attendance, however, and advised them to consider how their commentary might be construed and reported by the media.
OSHA representatives sought comments and input on four specific topics, outlined in the meeting agenda: (1) the possible regulatory approach for an Injury and Illness Prevention Program rule, (2) the scope and application of a rule, (3) the organization of a rule, and (4) the potential economic impact of a rule. The following points summarize the key stakeholder comments made during the meeting. Comments are grouped together by topic, without reference to the identity of the commenter.
Mike Seymour, of the Directorate of Standards and Guidance, introduced the topic of possible regulatory approaches for an Injury and Illness Prevention Program rule. OSHA has had an interest in injury and illness prevention programs for some time. The agency has established various initiatives over the years to encourage employers to implement safety and health programs. Support for safety and health programs led the agency to issue the Safety and Health Program Management Guidelines (54 FR 3908) in 1989. Current system standards, such as the ANSI/AIHA Z10 and the British Standards Institute OHSAS 18001, as well as the program standards implemented in various states, have also provided useful and effective guidelines.
Mr. Seymour posed the following questions to the stakeholders: What did OSHA do right in prior initiatives? What did OSHA do wrong? What can OSHA learn from the prior initiatives and the current standards? What can OSHA adopt from the groundbreaking guidelines set forth by state programs and consensus standards? What mistakes should not be made again? What can OSHA improve upon? What are the advantages and disadvantages of adopting such a rule?
Stakeholders provided the following comments and recommendations on the above topics:
General Support for the Proposed Rule
- At the start of the discussion, several stakeholders voiced their support for the implementation of an Injury and Illness Prevention Program rule. Supporters felt that safety and health management systems are urgently needed to protect the safety and health of workers. One commenter stated that many workplaces have minimal or no management systems, and far too many employers who are "clueless" or "criminal" when it comes to safety and health. Some stakeholders voiced how current safety and health programs are voluntary, and there needs to be something with the force of law requiring employers to take responsibility for preventing work-related injuries and illnesses. Various stakeholders think safety and health management programs will force employers to put plans into action rather than just having their intentions written down on paper. Stakeholders expressed employers need to see safety as a core responsibility, not as an additional part of management. Supporters emphasized that the rule would benefit both small and large employers. One stakeholder pointed out that an Injury and Illness Prevention Program rule would help reinforce the OSH Act, which makes employers legally responsible for the safety and health of employees on the job.
Opposition to the rule
- Some stakeholders, including representatives from large companies that have safety and health programs already in place, disagreed with the need for an Injury and Illness Prevention Program rule. They see no need for OSHA to regulate companies that have invested a substantial amount of time and resources into developing internal safety and health programs that have been proven effective. Regulation of a company's management programs, they said, would overstep the bounds of the agency and would be one step closer to government control of private industry. One stakeholder was concerned that forcing a new Injury and Illness Prevention Program regulation on companies would pre-empt current progress that is being made through voluntary programs, like OSHA's VPP.
Management Programs Versus Technical Standards
- One stakeholder representing a large multi-national company felt that management systems are not necessarily going to prevent safety and health problems. Rather, this participant stated, competence combined with enforcement of existing technical standards is what will prevent problems. As an example, offered this participant, fatalities can be reduced with increased enforcement of technical standards in target industries with a known history of fatalities, such as fall protection in the construction industry.
- Several stakeholders disagreed with the idea that technical standards alone are adequate for safety and health. Although the violation of a technical standard can lead to injury, they said, there is no way to solve future problems without effective management. Some said many companies have technical standards and binders of information on the shelf but they are not used. Several said there needs to be a standard that has the force of law to tell the employer that safety and health programs are not only a good thing to do, but a necessary thing to do. One representative from small business pointed out that technical standards are difficult for small businesses to understand, and some are expensive to buy. Additionally, stakeholders emphasized that there are too many hazards unique to individual workplaces, and it is unrealistic to expect there to be adequate technical standards to cover all hazards.
- One stakeholder, an industrial hygienist (IH), felt that current standards do not put enough emphasis on engineering controls for preventing injury and illness. The IH felt an Injury and Illness Prevention Program standard should require employers to focus on implementing engineering controls.
- Although this subject was not specifically on the agenda, a number of participants wanted to hear about OSHA's plans to enforce the rule and offered their own opinions on the topic. One stakeholder felt that enforcement would be the biggest issue facing this type of rule: it takes a long time to conduct an assessment of a management system at a major company or even in a single large facility, and OSHA does not have the resources to assess and enforce management systems. Stakeholders felt that both the California program written in the 1990s and OSHA's 1998 draft of a proposed rule were too loose, and thus too difficult to enforce. Stakeholders expressed the need for step-by-step guidance in the standard so that employers, employees, and inspectors know what constitutes a violation and what is required to be in compliance.
- One stakeholder felt that the rule should have detailed compliance requirements. In their opinion, for example, the Hazard Communication rule has lots of holes; workers can watch a 15-minute video and go back to work. Also in their opinion, this is not an interactive, educational process, but it is sufficient for compliance under the OSHA standard. This stakeholder believes to make safety programs effective the rule must be specific in its requirements because some employers will do as little as possible to comply.
- A union representative said that the standard should be enforced on its own terms; that is, whether the employer is following the standard and the Injury and Illness Prevention Program is working as intended. Enforcement should not evaluate and cite the Injury and Illness Prevention Program based on, for example, whether an accident or injury occurs.
- Another commenter said that a Injury and Illness Prevention Program is needed to achieve compliance with other standards-current, technical standards. If there is no safety and health program, the recognition of hazards is less.
- Several stakeholders were concerned that OSHA could have the authority to cite organizations for not complying with internal safety and health rules established under the management program required by the Injury and Illness Prevention Program. Some people disagreed that OSHA should have the authority to hold companies legally accountable for rules that have not been set into law. One stakeholder pointed out that it will not be easy to enforce the rules that companies have made for themselves. Stakeholders said for example, OSHA could cite a company for canceling a monthly committee meeting required by its own internal policies, even if the meeting was cancelled because there was nothing to discuss on the agenda. Another stakeholder stated that enforcement should be based on the required components of OSHA's Injury and Illness Prevention Program program standard, not on rules that companies have created for their own safety and health programs.
- One stakeholder felt that the original OSHA laws put together in 1970 did not create adequate avenues for worker involvement and if OSHA creates an Injury and Illness Prevention Program rule, it needs to allow for worker involvement to address hazards. Another stakeholder emphasized that Injury and Illness Prevention Program regulations should enable workers to speak up and be involved; sharing that unionized organizations have demonstrated encouraging employees to come forward and discuss problems is an effective way to prevent injuries. One person felt that a key step will be allowing frontline workers to participate in the evaluation of safety and health programs. Another stakeholder, however, cautioned that merely including a worker participation component in the rule may not be enough. This stakeholder said an Injury and Illness Prevention Program program will require buy-in and participation by both labor and management and everyone needs to pitch in and be committed; otherwise rulemaking will simply become punitive. Overall, the stakeholder expressed there needs to be a reason for people to be involved. Several stakeholders agreed that when workers have an active role in safety and health, they are more engaged in their jobs overall-so worker participation should help incentivize management, rather than be viewed as a burdensome new requirement.
Barriers to Participation
- A representative of a labor union remarked that the biggest obstacle to employee participation in safety and health programs is fear. This representative feels the rule needs to address the issue of fear in order to allow for participation of all workers - expressing belief that vulnerable populations, like immigrant or temporary workers, are especially fearful of participating or speaking up about problems because they are constantly afraid of losing their jobs. Another stakeholder from the healthcare field noted that in workplaces with both union and non-union employees, the non-unionized employees rarely speak up about safety and health issues. This stakeholder feels unionized employees are much more empowered to confront problems because they have the power of a safety and health committee and the union behind them. The representative remarked that an Injury and Illness Prevention Program program needs to address the element of fear faced by non-union employees. Two stakeholders agreed that Section 11(c) of the OSH Act, which is intended to protect employees who participate in safety and health activities from discrimination, has been not been very effective, particularly for workers who do not have the power of a union behind them. Stakeholders further feel the Injury and Illness Prevention Program rule must address this issue to protect all employees who speak up for safety.
Due Diligence/Canadian System
- Two stakeholders, both representing companies with operations in Canada and the United States, discussed the idea of due diligence as a mechanism for creating employee involvement. According to these participants, Canadian regulations (particularly in Ontario) have a rigid structure that requires employee involvement and worker training, in recognition of the role both employees and management play in achieving compliance. These stakeholders articulated this due diligence concept is not used in the United States, where employers are generally considered responsible and liable for employee safety. Additionally, the stakeholders pointed out that due diligence sets the structure and mandate that safety and health committees have employee involvement. They furthermore believe employees have the obligation and responsibility to participate in safety and health programs, but problem-solving is ultimately the responsibility of management.
Existing Consensus Standards
- One stakeholder felt that the ANSI Z10 standard is the best example of a current standard that OSHA should look at. The California program is weak on employee participation, felt this participant, and OSHAS 18001 is mostly an auditing standard and is not substantive or specific enough. This stakeholder said in contrast, ANSI Z10 is well-written, features strong employee participation elements, and also emphasizes the hierarchy of controls.
- Several stakeholders discussed how OSHA's VPP works as a model for injury and illness prevention. Some stakeholders agreed that VPP offers a framework for what OSHA is trying to do with Injury and Illness Prevention Program. Various stakeholders outlined how under VPP, all people on the worksite, including contract workers, company employees, and outside contractors, are scrutinized and therefore, all participate in helping the workplace become safer. Stakeholders said VPP provides a forum for non-union employees to bring up any issue, anytime. Other stakeholders noted some problems and shortcomings with VPP and felt that VPP cannot be the model for an injury and illness prevention program unless major changes are made to the current system. One participant reported challenges keeping participation fresh under VPP and noted that safety observations can only be done on a limited number of things, and trying to come up with new ideas to solve the same problems becomes difficult after a while. Another participant voiced the opinion that VPP only works if the employer genuinely supports the intent of the program. According to this participant, some companies use VPP as a shelter to hide behind because they are not exposed to inspections and do not have to comply with rules that are not part of the VPP system. One stakeholder said that his company had opted out of VPP because it continued to have a poor safety record while in the program. Instead, the company focused efforts on building an effective safety and health committee and was quickly able to reduce its problems.
- Several stakeholders agreed that an Injury and Illness Prevention Program rule is essentially a social program that aims to create a cultural change in the workplace. They emphasized that writing a standard to create culture change will be a considerable challenge. A representative of a large corporation enrolled in VPP noted that VPP sites are able to achieve culture change in their organizations. This representative recommended that OSHA look at VPP as an example of how to change the culture of safety and health.
"Program" Versus "System"
- OSHA posed the question of whether Injury and Illness Prevention Program should be defined as a management program or a management system. Stakeholders generally agreed that the difference between the terms "system" and "program" does not matter; drawing a distinction between a program and system may not be worth the effort. They felt that the result, which is demonstrable and verified, is what matters. The elements of a system are critical, but what it is called is not too important.
- One stakeholder felt that the rule needs to establish the number of occupational safety and health professionals an organization must have, and that this be based on size. The stakeholder felt currently, there are no guidelines for the level of resources a company must devote to safety and health. This stakeholder feels the rule should also make it a requirement for safety and health professionals to report to higher management at the company. Other stakeholders disagreed with OSHA defining the minimum level of professional resources needed at a particular company: since OSHA does not know what resources individual businesses will need to run their safety and health programs, it does not make sense for OSHA to decide what resources a company must have to run a successful program. One stakeholder felt that a company does not need dedicated safety professionals to be safe-in an ideal world, management should be able to effectively run safety and health programs, with safety professionals hired as consultants to advise them. Another stakeholder who disagreed with the idea of requiring full-time safety and health staff said that it is most important for companies to emphasize communication between management and workers. If there is adequate communication, a full-time safety and health person is unnecessary because problems are readily identified and dealt with.
Safety and Health Committees
- Some stakeholders felt that the current standards do not provide enough emphasis on safety and health committees. Some stakeholders felt Safety and health committees need to have defined authority, which should be mandated by the rule. A number of stakeholders felt a standard should provide committees with specific rights and mechanisms to identify and investigate hazards.
- Several stakeholders mentioned that lack of communication between levels of management is the major problem under current standards. Various stakeholders believe when information is not flowing, it can cause major problems and lack of communication is an issue even with small employers. More than a few participants feel that many times, different levels of management do not want to work with others. Multiple stakeholders said an Injury and Illness Prevention Program rule should require open communication and an exchange of information.
- One stakeholder felt that current standards rely too much on injury and illness rates as a measure of program effectiveness. Several stakeholders stated that they believe injury and illness rates are not accurate because of underreporting, which is an issue everywhere-in large plants and in small businesses. Stakeholders believe underreporting is a complicated problem with many causes. These stakeholders suggested that the rule should focus on identifying and managing hazards and increasing worker participation in safety and health programs, rather than focusing on trends in reported rates of injury and illness. Another stakeholder felt that a key component of driving progress will be establishing goals. This participant felt that continuous monitoring and evaluation are needed to measure how programs are working toward those goals. OSHA and industry alike must decide what those goals are and how to measure progress.
David Wallis of OSHA's Directorate of Standards and Guidance introduced the topic of the potential scope and application of an Injury and Illness Prevention Program rule. Mr. Wallis expressed OSHA's interest in hearing participants' opinions about how broad a reach an Injury and Illness Prevention Program rule should have. OSHA would like to formulate a rule that is broad enough to capture all workplace hazards, but also be focused enough so that the rule does not lose its effectiveness. Mr. Wallis explained that the scope of the rule could be limited using several different approaches, and that OSHA was particularly interested in hearing stakeholders' opinions about whether and how to do this.
Mr. Wallis posed the following questions to the stakeholders: Should an Injury and Illness Prevention Program rule apply to all industries, or should the scope be limited only to specific industries? Should the rule be limited to employers of certain size? Should the rule be limited to employers with a certain injury and illness rate experience? Should the rule be limited to specific occupational hazards? What approach would be best to capture the workplaces that would benefit most from an Injury and Illness Prevention Program rule?
Stakeholders provided the following comments and recommendations regarding the scope of the rule and how it should be applied:
Scope of the Injury and Illness Prevention Program Rule
- A majority of stakeholders agreed that an Injury and Illness Prevention Program rule should be universal and not be limited by industry type, size, or injury rates. Participants made the following comments in support of universal coverage:
- An Injury and Illness Prevention Program makes sense for all employers. The rule should not have categorical exclusions because it will undermine the broad intentions of Injury and Illness Prevention Program.
- Industries and workplaces with high injury and illness rates can continue to be addressed by other parts of OSHA. It is more important that an Injury and Illness Prevention Program rule cover every worker and workplace regardless of hazard.
- Limiting the scope of the rule to industries with high injury and illness rates could potentially exclude small organizations that may have serious hazards. The rule needs to be general enough to apply to all workplaces, especially small organizations.
- Limiting the rule to only high-hazard industries does not make sense. The effort required to develop the Injury and Illness Prevention Program will reflect the number and seriousness of hazards. Less hazardous workplaces will spend less and have an easier time implementing the Injury and Illness Prevention Program, so they will not face the same burden as high-hazard industries. Additionally, OSHA should not base coverage on lagging indicators (e.g., injury and illness rates).
- Businesses should not be excluded based on a characterization of high risk or low risk. Employment relationships are changing and there are today many more examples of subcontractors working for host employers (e.g., janitorial contractors performing dangerous work in meatpacking plants). Often, host employers and subcontractors try to avoid safety and health responsibilities by offloading them onto each other. If exclusions are made, it will be easier for employers to avoid their responsibilities.
- Limiting the scope of the rule would send the wrong message to employers. Employers in industries that are marginally covered or not covered by the rule may feel that they have an invitation to lean in the wrong direction. OSHA needs to take the long view and err on the side of safety and health.
- Limiting the scope of the rule to specific hazards does not account for uncertainty. As technology advances, workers in what today are seemingly safe industries will be exposed to a new set of hazards. OSHA must use a preventive approach because taking reactionary measures in the future would be a disservice to management systems that are already in place.
- Some stakeholders, on the other hand, felt that having an Injury and Illness Prevention Program rule that covers all employers is unnecessary. Two stakeholders felt that OSHA needs to be realistic in the scope of the rule due to limited resources and funding. They felt that OSHA should specifically focus on high-hazard industries because OSHA already has the data to easily identify these workplaces. In addition, some stakeholders feel there is no way OSHA would have adequate resources to enforce the rule for all workplaces. Stakeholders expressed that in an ideal world all workers would be covered, but if OSHA is going to have a rule that is effective and enforced, they need to go after industries with the highest risk or the most hazards and feel this is where a rule is most effective. One representative of a large multi-national company felt that OSHA often focuses on large companies because they are identified as having high hazards or high rates of injury and illness. This representative believes large companies have established safety and health programs and are in full compliance with OSHA regulations and therefore, OSHA needs to focus on small businesses and companies without safety and health programs because these employers are the ones that will benefit most from new regulations and standards.
Grandfathering Existing Programs
- A few stakeholders expressed interest in the idea of grandfathering companies with proven safety and health programs from the requirements of an Injury and Illness Prevention Program rule. They argued that most large companies already have hundreds of management regulations that they must follow, and many Fortune 100 companies already have their own standards in place. There is no need, they said, for OSHA to tell these companies that they need a standard if they already have their own programs or standards in place.
Metrics and Evaluation
- Several stakeholders felt that using injury and illness rates as a method to identify workplaces that should fall under Injury and Illness Prevention Program rule is not a good approach. One stakeholder was concerned that there is a fundamental issue in using severity rates as a way to measure the level of hazard in different industries. Stakeholders felt some industries have rates that are much higher than others due to false positive counting. Offering an example, a stakeholder shared shipyards have high worker's compensation payouts, which results in more workers coming forward to report injuries. Another stakeholder agreed that using severity rates of injury and illness is a flawed approach because they are often based on lost days of work, which is a metric that can be strongly influenced by the type of worker's compensation coverage at a particular workplace. A representative of a large company noted that injuries and illnesses are rare in small workplaces, which means that simply looking at the rates will not necessarily be effective for identifying the presence of hazards. Stakeholders agreed that injury incidence or occurrence rates may be good for identifying problem sites and targeting specific responses, but they are lagging indicators and should not be the driver for determining which employers are covered under the standard.
- Several stakeholders mentioned specific industries that they felt must be considered under an Injury and Illness Prevention Program rule:
- One participant was concerned as to why OSHA chose to exclude agriculture and construction industries in the 1998 draft regulation. Another stakeholder emphasized that OSHA should change their approach toward agriculture because factory farms are high-hazard workplaces and these workers need to be protected.
- One stakeholder representing the public education system was concerned that public sector employees are often overlooked by federal regulations. School teachers in particular face a suite of hazards like indoor air pollution, violence, and chemicals. The rule needs to apply to everyone and cannot be based on the size of the workplace or the nature of reported incidents.
- One stakeholder is concerned that because independent contractors are not covered by OSHA enforcement, they may not be covered by an Injury and Illness Prevention Program rule.
- One stakeholder noted that, as this country's workforce changes, it has become common that employees never report to the place of business and do most of their work from home. A rule needs to account for tele-workers and other employees who may never be on the worksite.
- Several stakeholders emphasized that low-wage and temporary workers are a subset of the worker population that has particularly poor safety and health, but is often overlooked. Multiple stakeholders felt for low-wage, temporary workers, there are often no written work rules or procedures, loosely written job description, and no safety and health management systems. Participants felt in these situations, if workers have safety and health problems they are on their own. Additionally, stakeholders feel temporary workers, immigrants in particular, face substantial hazards at work and have underreporting of injury and illness. Stakeholders suggested that an Injury and Illness Prevention Program rule should make it clear that these workers must be included on safety committees, and it is the responsibility of the employer to train and protect all of their employees. Some stakeholders were concerned that assigning responsibility for temporary workers' safety and health is not an easy task; explaining how low-wage and temporary workers may work at multiple worksites in a given day and there may be multiple employers at those worksites. One stakeholder felt that the rule should assign safety and health responsibilities to temp agencies. Others disagreed: the reason for bringing in temporary workers is to reduce overall labor costs; temp agencies are inexpensive because they operate on slim margins and low overhead. Some stakeholders believe it is highly unlikely that a low-wage employer like a temp agency will invest in their employees enough to provide appropriate training. A representative of a labor union informed OSHA of a document prepared by CalCOSH that presents data on immigrant worker participation in safety and health programs.
Cover Hazards, Not Industry
- One stakeholder felt that the rule should apply specifically to particular hazards and not industries themselves. This stakeholder suggested there are fewer hazards than types of industries; therefore, it is more practical to develop regulations that are based on the type of hazard; perhaps there could be technical standards and guidelines for preventing the different types of hazards. The participant felt defining the rule by specific hazards would help small companies that may not fit into a particular industry implement appropriate interventions. Another stakeholder disagreed, feeling that the hazards faced by different industries and workplaces are unique and it would not be possible for OSHA or anyone else to define them all.
- Many stakeholders were concerned that current safety and health programs do not put enough responsibility or accountability on employees themselves. One stakeholder noted that creating a prevention program on paper may be simple, but the application of such a program is difficult; while a company may develop a wonderful program, if employees choose not to participate in safety measures and are injured, that program is ineffective. The stakeholder felt having a program does not mean that employees will benefit. Another stakeholder felt that personal accountability for safety and health cannot be emphasized enough and that it should be made clear to workers that they share responsibility for their safety and health. Representatives from various industries emphasized that management cannot be present at all worksites to ensure that workers are following safe practices so to some extent, businesses must rely on workers to comply. One stakeholder expressed concern that workers will continue to take risks regardless of the type of management system or safety and health program that is put in place. A representative of an energy utility noted that workers may disperse 200 to 300 miles from the home office to get to the worksite on a given day. All employees are informed of hazards, that participant said, but there is no supervision at the worksite and therefore, if employees choose to cut corners, it puts them in a dangerous situation. The participant said the employer sets the foundation for safety and health, but they cannot do it all-employees have responsibility too.
- Other stakeholders disagreed with the idea of assigning responsibility to employees. A representative of a labor union provided an example of the gas plant explosion in Connecticut earlier this year. In this case, people said that the worker did something wrong-but other gas line blowouts have been done using the same process and there was not a problem. The problem was not the worker's fault, said the participant, but rather that there was no manager at the site to make sure that the process was being done safely. Another participant also argued the processes that workers engage in are management's responsibility and making workers accountable for safety and health could have unintended negative impacts, which is not the goal of an Injury and Illness Prevention Program rule. For example, the stakeholder shared, a worker may be fired if he or she does not pass a certain test or does not follow a safety rule that has been established by management. Another stakeholder noted that, by nature, workers want to go home healthy and it is the responsibility of management to provide workers with training on how to understand and avoid risks so that they can be safe on the frontlines.
- On the topic of responsibility for safety and health, several stakeholders addressed the issue of how the Injury and Illness Prevention Program rule will apply to multi-employer worksites. One stakeholder stressed the issue of responsibility at multi-employer worksites is confusing; contractors may be onsite short- or long-term, and come from many different sectors with many different approaches to safety. One participant mentioned that their company has contractors on site in charge of the food service in the cafeteria. Assigning responsibility for safety and health in such cases is very difficult, the participant continued, and it is best to take an approach in which the host company is responsible for all workers under their roof. A representative of the construction industry pointed out that some host organizations have strong safety and health policies, while others leave it to the contractor. This representative felt the host site/property owner needs to be held accountable for safety and health so that all workers at the site are covered. One stakeholder suggested that in multi-employer workplaces, the long-term elements (e.g., training) of a safety and health program will be more successful if employers implement them directly for their employees. On the other hand the stakeholder suggested, the host-not the employer-should identify hazards and find solutions to problems. The participant advocated this approach will create a workplace culture that allows hazards to be identified, encourages proper behavior, and puts plans into action to solve problems no matter how many employers are on a site and furthermore suggested, host sites should also recognize employees who point out safety and health problems. A representative of a large corporation said that all people in a workplace should be covered under the host organization's safety and health system. One stakeholder mentioned that the Injury and Illness Prevention Program regulations should make it so that contractors can be fired or have their contracts voided by the host organization if they are not meeting safety and health requirements.
Mark Hagemann, of the Directorate of Standards and Guidance, introduced the topic of how the Injury and Illness Prevention Program rule should be organized. OSHA has the task of determining what an Injury and Illness Prevention Program standard would look like; Mr. Hagemann requested stakeholder input on how the standard should be organized so that covered employers and industries will be able to comply with the rule. In the announcement for the meeting, OSHA had identified six "core elements" that the standard could include: management leadership, employee participation, hazard identification and assessment, hazard prevention and control, education and training, and program evaluation and improvement. OSHA also asked participants for input on whether it should include appendices to the standard that provide tools to assist in compliance.
Mr. Hagemann posed the following questions: Are the core elements identified by OSHA appropriate for an Injury and Illness Prevention Program rule? Which elements are essential for an effective approach? Are there additional elements that should be included? What type of information or tools should be included in the appendices? Do you have successful tools, ideas, or guidance on how to make it easier for employer to comply with an Injury and Illness Prevention Program standard? Do you know of a sample program? What should the overall standard look like?
Stakeholders provided the following comments and recommendations regarding organization of a rule:
- Discussion began with a variety of stakeholders emphasizing the importance of open communication between management and employees. Some felt that communication should be a core element of the rule because it is something that can be overlooked very easily. One participant observed that many companies assume that communication is taking place, when in reality it is not. Another stakeholder said that management thinks they are doing a great job but when they go to a worker in the field and ask them about safety and health they have no idea what is really happening. A representative of a labor union pointed out that, when there is a lack of communication, the relationship between labor and management begins to break down. This representative commented that unionized workers often express the desire and necessity for open communication with management. One stakeholder felt that a common problem with communication is that first line supervisors are not getting enough useful safety and health training. Supervisors on the floor must deal with a wide variety of issues, and to them safety and health is just a check box on their performance review, not really a competency. Supervisors are mainly concerned with production, so they need to be provided with effective tools to deal with safety and health. Other stakeholders agreed that there must be more interaction between management, frontline supervisors, and workers. A representative from the safety and health department at a large corporation felt that communication must be a separate and distinct element of safety and health programs, and it needs to have as many touch points and guiding principles as possible. It takes effort to get messages across, continued this representative, and businesses need a guide for how to have effective communication.
Safety and Health Committees
- One of the major points of discussion was the importance of safety and health committees as a component of an injury and illness prevention program. One stakeholder noted that joint committees, consisting of both labor and management, provide a place for communication and problem-solving. With such a forum, suggested the stakeholder, it becomes possible to understand and then follow technical standards. Others agreed that the most effective committees must have representatives from both labor and management. Others concurred that a successful worksite program would have everyone represented on the safety and health committee and provide everyone with training (e.g., knowledge of safety processes). Some stakeholders felt that OSHA should require certain members of management and labor to be on safety and health committees. One stakeholder believed that a representative from upper-level management (i.e., someone who can write a check) must be on the safety and health committee and felt it impossible to solve problems and implement changes if the committee does not have the authority to allocate resources.
- Another stakeholder disagreed with requiring representation from upper management on safety and health committees because doing so would allow them to dominate and hold veto power. Others suggested that the issue could be solved by having two committees: a combined committee with labor and management and a labor-only committee. One stakeholder emphasized that as long as safety and health can be openly discussed with management that is willing to take responsibility for the issues, a manager does not have to be on the committee.
- Several stakeholders cautioned OSHA not to be so specific in defining how committees are to be established and operated. Stakeholders thought one approach may not work in all industries commenting that employers and employees do not always work together and may never be in the same room. Participants further indicated that it does not make sense for OSHA to be so specific. A representative from the construction industry pointed out that in smaller companies, like home improvement contractors, management and labor often work side by side. Committees, stakeholders offered, may be made up of employees with different roles depending on the nature of the business.
- Several stakeholders made recommendations for requirements that they believed will help committees function more effectively, such as:
- Committee members need to be well-educated in safety and health topics and receive adequate training (e.g., OSHA 10- or 30-hour certifications).
- Committee agendas need action plans that set forth tasks and time limits to get them done. If there are no plans of action, the same agenda is followed time after time and problems do not get fixed.
- In order to encourage involvement, committees should present a list of goals and ask employees for ideas on how to fix problems to meet those goals.
- Management should provide committees with a timetable for correcting hazards or explain in writing why they are not going to fix a problem.
- Committees need a charter by which they operate.
- Many stakeholders felt that it would be beneficial if OSHA could improve how they distribute information to members of safety and health committees and employees. One suggested it would be useful for companies to supply the names of their committee members to OSHA so that information can be sent to them. A participant felt people on committees must constantly struggle to be on equal footing with management because they have to balance other work responsibilities, while for management it is their full-time job. If OSHA provided information to committee members, continued the participant, it would help them stay on a level playing field and make negotiating more efficient and effective. E-mail is a powerful tool for inter-employee communication and accessing information another stakeholder said, pointing out that the U.S. Environmental Protection Agency and the State of New Jersey have e-mail alert programs that could serve as examples, suggesting that OSHA should maintain a confidential e-mail database of committee members and send out publications and information. A representative of a labor union noted that OSHA holds many free classes and seminars; OSHA spends a lot of money on this, so people should know that there are free classes out there they can take. Other stakeholders indicated it would be helpful if OSHA's outreach programs were better advertised to the public. One stakeholder was concerned that each committee will be different at a given worksite, and they do not all need to be provided with the same information; someone should decide what material should be communicated so that workers on the committee are not overloaded with detailed information.
Disclosure of Information
- Several stakeholders felt that employers should be required to disclose certain information to workers and to safety and health committees, expressing that there needs to be a mechanism for sharing information as part of the management system. Stakeholders felt having a disclosure requirement and a designation of who should receive information will enhance the effectiveness of communication. A representative of a labor union said that disclosure is a powerful tool that management should use as part of a safety and health program, and believes disclosing information about specific hazards, incidents, or rates of injury and illness can be a tool to drive behavior to make positive changes. Others agreed that employers should provide committees with all information, including safety and health policies, programs, records of compliance, worker's compensation claims, accidents, complaints, surveys, air sampling results, medical monitoring results, preventative maintenance programs, and education and training records. One stakeholder noted that if people are provided with information there needs to be a way to ensure that they understand what it means and can interpret it properly. One stakeholder cautioned that disclosing certain information may release confidential business information or medical data in violation of the Health Insurance Portability and Accountability Act and recommended employers should check with counsel to determine what information can and cannot be released. Another stakeholder pointed out that involving attorneys and lawyers in making disclosure decisions will be a further financial burden on employers.
- Many stakeholders felt that the rule must establish metrics for properly evaluating safety and health programs. One stakeholder pointed out that in order to drive progress, there must be a way to measure the effectiveness of safety and health programs. Stakeholders recommended as time goes on, programs need to adapt and change to have continual improvement; measuring the effectiveness is subjecting programs to change. Some participants felt it impossible for OSHA to measure or enforce change in management programs, but felt they could include ideas and tools for how to accomplish it. Another stakeholder emphasized that there is a difference between measuring occurrence and effectiveness. Traditional metrics like injury and illness severity rates measure occurrence. It is not an easy task to measure success.
- Stakeholders provided the following advice and suggestions:
- OSHA should put together a task force to identify leading indicators that will be the best metrics to evaluate management systems.
- Forward-looking metrics, such as safety audits and audits of safety and health programs, could be a good tool for evaluation. Audits could be especially beneficial for evaluating progress in workplaces employing many temporary workers or in the construction industry, since both of those types of workplace are particularly difficult to measure over time.
- There needs to be a focus on leading indicators, such as training effectiveness, identification of hazards, and audits.
- There should be trigger levels that prompt audits of safety and health. For example, an elevated injury or illness rate in the reporting log would trigger the need to go back and assess the cause of the problem.
- Performance metrics (e.g., whether the committee met as scheduled, whether they did a required audit) that indicate whether the program is working would be more helpful than endpoint metrics. Endpoint metrics are not helpful for a program aimed at prevention.
- There needs to be a way to measure near misses. A near miss has every characteristic of an actual incident, except that the negative consequences were averted. There needs to be a clear, universal OSHA definition of near misses and a way to measure them. Currently, near misses are at the bottom of the pyramid.
- The ideal metric is whether the organization is identifying and correcting its hazards. Metrics should measure the ability to fix problems. Creating the ability to fix problems quickly and effectively will help to develop a problem-solving culture.
- Management systems reflect the culture of an organization. It is very difficult to measure culture. The only way to get a sense of culture is through perception surveys, but they cost substantial time and money.
- One way to try and measure culture change would be to conduct feedback sessions with employees to determine how their knowledge and impressions of safety and health have changed over time.
- Stakeholders provided input on what OSHA should include as an appendix to an Injury and Illness Prevention Program rule. Various stakeholders felt that the appendix should contain a compendium of best practices. Stakeholders suggested there are only so many safety and health problems, and it is likely that other workplaces have faced similar problems and already found a solution to them. Participants felt the problem is that the information is all over the place; it needs to be easy to find for people to access it and they generally felt having an electronic database or an online compendium of best practices would allow people to easily access information and better utilize their resources. Stakeholders felt companies could then easily see what is out there and identify what solutions actually will work. One stakeholder stressed that a compendium of best practices in electronic files or on the Internet will not be nearly as effective as classroom training. Another stakeholder felt that an appendix should contain samples of model programs and that model programs would be especially beneficial to small companies that do not have examples of safety and health programs - suggesting that the OSHA Challenge Program is a good example of a model program. One participant from the construction industry felt the rule should include a "plug and play" or step-by-step model so that small contractors can easily follow it. Other stakeholders disagreed with the idea of a model program, stating that it is better for OSHA to point out how to do things or provide best practices rather than provide a specific model. A participant felt that if people are provided with a specific model to look at, they will question their own ideas too much and end up following the sample program verbatim. One stakeholder mentioned that there should be an appendix that points out what resources (personnel and budgeting) are necessary to have an effective safety and health program.
Use of Checklists
- One stakeholder felt that there needs to be a checklist system for reporting problems in the workplace. Most problems will be reported to a supervisor, the stakeholder said, but after that the problem still stays. A stakeholder commented that people need to know how the system of reporting operates and how to communicate problems so that something can be done to fix them.
- One stakeholder mentioned that there should be a timeframe for fixing a problem once it has been identified. Employees should feel empowered to speak up and know where to go if the problem has not been addressed, the stakeholder said; there needs to be something in the standard that gives people an idea of how to proceed when problems are not fixed within a certain amount of time.
- Some stakeholders felt that workplaces could have recognition or discipline programs to try to encourage safety and health. One stakeholder pointed out that recognition provides people with an incentive to help the committee and be involved. A stakeholder recommendation included acknowledging parts of the company or people who have made contributions to safety and health at a safety symposium. Another stakeholder felt that publishing a list of committee accomplishments would be a good method of recognizing positive impacts on safety and health. A representative of a large corporation also emphasized that discipline can be an effective way to discourage unsafe behaviors or give people the incentive to fix problems and that disciplinary programs need to go hand in hand with recognition and reward programs. Another stakeholder, who represented a labor union, cautioned that a recognition/discipline system could overstep bounds of the employer/employee relationship.
- One stakeholder felt that an Injury and Illness Prevention Program rule must establish clear guidelines and requirements for recordkeeping and documentation and that the requirements should specifically address how long records must be kept.
- Several stakeholders emphasized the importance of training as a component of an Injury and Illness Prevention Program rule. A representative of a safety and health department at a large corporation noted that noncompliance with safety and health is usually due to lack of training and education. Stakeholders felt that the rule should specifically address what constitutes "good" training and provide best practices for training at particular workplaces. Additionally, stakeholders felt that the rule should provide a list of what comprehensive training should be. Some stakeholders expressed that computer-based and video training is not enough. One stakeholder mentioned that more effective training programs are done by the Coast Guard and some other organizations, which use a facilitator or a trainer to educate people rather than sitting them in front of a video or a computer. One stakeholder suggested that there needs to be a way to ensure that training is conducted by instructors who are qualified. Another stakeholder stressed that workers should be recognized as effective trainers. The Susan B. Harwood Training Grants, said this stakeholder, recognize the value of peer training.
- Several stakeholders provided references that may be helpful to OSHA:
- One stakeholder said that the Bureau of Labor Statistics has done two major studies on safety and health plans in different workplaces.
- The California Division of Occupational Safety and Health has information about Injury and Illness Prevention Program programs on their website.
- Appendix C of the ANSI standard has good information on recognition and incentives. There is also information on metrics as a useful tool.
Paul Bolon from OSHA's Office of Regulatory Analysis introduced the topic of economic impacts on an Injury and Illness Prevention Program rule. Mr. Bolon explained that OSHA is required to demonstrate that its regulations are economically feasible. Additionally, to facilitate OMB's review, OSHA weighs the economic impacts of regulations using the techniques of cost-benefit analyses. OSHA needs stakeholder information about what the potential costs and benefits of an Injury and Illness Prevention Program rule would be.
Mr. Bolon posed the following questions to the stakeholders: What would be the costs to businesses to implement an Injury and Illness Prevention Program rule? What would be the incremental cost to businesses that already have injury and illness prevention programs in place? How can costs be minimized? How can the benefits or the effectiveness of Injury and Illness Prevention Program be measured? What sorts of resources are required to fix safety and health problems? Mr. Bolon also asked stakeholders to refer OSHA to any specific sources of cost or benefit data that they were aware of.
Stakeholders provided the following comments and recommendations regarding economic impacts:
Components of Cost
- One stakeholder believed it would be a challenge to determine actual cost values of safety and health programs and felt that it is easy to price administrative hours, but to determine the cost to fix problems is much more variable and difficult. Another stakeholder agreed that much of the measurable cost would be in time and not actual dollars. On the other hand, a representative of small business noted that if a small company without expertise needs to write entirely new programs or hire consultants to write them, this will be a major cost.
- A participant noted that OSHA should measure the costs associated with employee turnover in places with poor safety and health records.
- One stakeholder pointed out that costs will vary greatly by industry sector, and it will not be easy to estimate a general cost approximation.
Defining the Baseline
- A few stakeholders emphasized that OSHA should not necessarily focus on determining the total cost of programs from scratch, but rather what the incremental cost would be to put in the additional structure to manage an Injury and Illness Prevention Program rule. One stakeholder pointed out that employers are obligated to fix problems with or without Injury and Illness Prevention Program; therefore, only the implementation of management systems required by Injury and Illness Prevention Program should be considered as a cost.
Cost of Training
- Three stakeholders noted that training is a necessary part of any prevention program, but it is also quite expensive. These stakeholders felt costs of training can be high because businesses sometime lack the knowledge to do it and need to hire outside trainers or consultants. One stakeholder suggested that Special Government Employees (SGEs) provided by OSHA might be used in the training process to reduce costs.
Estimating Avoided Costs
- One stakeholder pointed out that costs associated with injuries and illness should be looked at to get an idea of how much money can be saved if an employer implements effective safety and health programs. This stakeholder suggested OSHA look at a variety of direct and indirect costs, including cost of medical care and hospitalization, disability payments, health insurance, lost productivity, and replacement of injured workers.
- One stakeholder pointed out that a potential benefit of safer and healthier workplaces is improved overall environment and community, which can increase property values. Another stakeholder pointed out that a healthier workforce will be able to increase productivity. Participants suggested these benefits may be a buy-in for the local community and business management.
Cost Impacts to Low-Margin Employers
- Some stakeholders were concerned with how increasing costs may affect temporary labor. One stakeholder noted that low-wage employers may be put out of business because they operate on such low margins. Any costs will put a great degree of financial pressure on them. A representative of a large company also said that if the costs of hiring temporary labor go up, the operating cost to host companies will also go up. An increase in costs to host companies will undermine the incentive of potential benefits from a reduced cost of injury and illness.
Use of Checklists
- One participant suggested that employers can minimize the costs of operating a safety and health program by using existing checklists; checklists are readily understandable, which increases efficiency and can improve outcomes.
Additional Information Sources
- Stakeholders provided a number of references that OSHA could look into for data on costs:
- A good place for OSHA to look for cost information is the OSHA Challenge Program. OSHA could survey participants that started with nothing and see what the costs were to develop their safety and health programs.
- The American Petroleum Institute and others in the chemical industry have information and data on the costs of safety and health programs.
- Large organizations most likely have budgeting and cost accounting systems. OSHA should be provided with cost data as a condition of participating in rulemaking. OSHA should call into question cost estimates that do not have documented information.
- Kaiser Permanente has estimated the costs of safety and health training.
- Catastrophic events provide valuable cost data. The Chemical Safety Board may have data in terms of catastrophes (lost jobs, etc.).
- One stakeholder pointed OSHA to a Rand Center study that may have good cost data.
- Stakeholders also mentioned: OSHA's VPP, the OSHA Challenge program, The Chemical Industry Responsible Care Program, and the Department of Energy Voluntary Protection program, as places where OSHA can look for cost data.
Stakeholders provided additional comments and recommendations related to an Injury and Illness Prevention Program rule that could not be classified into any of the key topics above:
- Small businesses have higher fatality rates than large companies and studies have shown that they can build successful safety and health programs. OSHA has excellent tools now for small businesses.
- The plants of Fortune 500 companies and even Fortune 10 companies do not all have similar safety and health records. There can be bad plants owned and operated by companies that have good overall safety and health management systems and track records. There need to be regulations that require companies to have effective safety and health programs at all of their operations.
- There is a possible collision course between a rule like this and the people on the shop floor. Tensions are high today, jobs are insecure, and abuse and risk-taking is more common than in better economic times. Safety and health comes last in an environment where companies want to maximize their production and workers will do whatever it takes to keep their jobs.
- One stakeholder was concerned that there was no specific discussion about health during the meeting. Some people come to work with pre-existing conditions and have health needs that extend beyond safety in the workplace. The rule needs to try to promote health and wellness. Health promotion is especially important in aging workforces.
- Several stakeholders emphasized that the rule should be short and simple to be effective. "Short" does not mean "less comprehensive," they noted. One stakeholder said that they were able to write a one-page charter for their safety committee and it has been very effective.
- Large companies should be willing to share their standards and information about how their management systems work.
- Companies cannot be expected to implement everything at once, but there are certainly some elements of the rule that could be put into place right away. Trying to make things perfect should not get in the way of improvement. OSHA should begin putting together a preamble to start the rulemaking process.
- This is the type of thing that will take a long time for workplaces that do not currently have safety and health programs to implement and see effectiveness.
- All employers can use all the help they can get, because buying into a standard will require lots of resources.
- Injury and Illness Prevention Program should have been the first standard OSHA enacted.
Mr. Seymour thanked the attendees for spending the time to participate in the meeting. He felt that the conversation was highly informative and will help the OSHA panel as they proceed in forming the Injury and Illness Prevention Program rule. Mr. Seymour emphasized that interested parties can provide documents and other information to OSHA before the docket is open to submissions. OSHA wants to have as much time as possible to review and analyze information before the rulemaking process begins. Mr. Seymour mentioned that OSHA is considering conducting a series of site visits at companies that have effective safety and health programs to see how their programs operate. Interested parties should contact OSHA if they would like to arrange a site visit. In closing, Mr. Seymour pointed out that Injury and Illness Prevention Program is a priority project for OSHA and that there are many people from different regions and directorates working to assemble the rule.
Ms. Dougherty joined Mr. Seymour in thanking everyone for their participation. She mentioned that OSHA is planning to hold a virtual Injury and Illness Prevention Program stakeholder meeting similar to the one that was done for combustible dust. Through this meeting, OSHA hopes to reach out to stakeholders who are intimidated about speaking in public or do not have the time or availability to attend a scheduled meeting.