OSHA Blocked From Protecting Workers

The editorial in The New York Times states the truth — “OSHA Needs Support, but Gets Roadblocks.” As a nation, the men and women who work each day in our businesses and factories are our greatest resource. Yet, we have too often failed these workers and their families when it comes to safety. In human terms, an emphasis on safety should be our most important goal. In simple dollars and cents, the costs to us of injuries, disabilities, and deaths from workplace accidents, is tremendous. The costs of injuries far exceed the costs of investing properly in safety.

The editorial writer discusses the recent fertilizer plant explosion in Texas and concludes:

We don’t yet know the details of how the explosion occurred in West, Tex. But one thing is certain: either the regulations weren’t good enough, or they weren’t enforced well enough. The answer is better regulations or better enforcement – probably both.

I agree. Far from dragging business down, an effective safety system promotes long-term success and growth. It is an investment in our people. It is an investment in businesses that focus on growth and success instead of short-term profit.

In my Alabama accident and injury practice, I have seen several problems with OSHA similar to those discussed by the editorial writer. They are:

  1. Not Enough Inspectors — According to the editorial writer, OSHA has fewer inspectors now than it did in 1975. Yet, our economy and population have grown tremendously in the over 3 decades since then. In Texas where the explosion occurred, it would take 98 years for OSHA to inspect all the existing facilities because of its lack of inspectors. I have represented many people who were injured in accidents that could have been prevented by a prior safety inspection.
  2. Weak Enforcement — With too few inspectors, enforcement of reasonable safety rules is very difficult. But, that is not the only enforcement problem OSHA faces. Too often, OSHA fails to enforce or collect the fines resulting from unsafe workplaces it has cited. OSHA often reduces fines. What’s more, OSHA does not even collect a huge percentage of fines. In short, many unsafe companies simply avoid or evade the rules. In my practice, I have handled personal injury cases where the facility was cited by OSHA over the unsafe practices that led to the injury. I have seen first-hand how OSHA’s legal enforcement is not adequate to face a large company with good attorneys. Why can’t our government devote some legal talent to enforcing its rules? OSHA’s failures in this area make it more difficult for the injured worker to seek full justice later.
  3. Lack of Reasonable Rules — The Times editorial writer sums it up nicely. “Congress has made it so hard to set new regulations that it takes OSHA many years and many millions of dollars to establish a single new rule for a single hazard.” OSHA should be responsive to developments in business and industry. Hazards that exist in the workplaces of 2013 are different than those 0f 1975. Technology changes rapidly. New processes and equipment are the result. Yet, OSHA’s rules can remain locked in the past.

Our state, Alabama, lacks any real safety system. Because of this, a working OSHA is essential. Safety is important. We should demand a system that protects our workers from needless injuries.

 

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A Discussion of OSHA And Its Failure To Prevent Injuries

The recent industrial explosion in Texas has pushed workplace safety back into the spotlight. However, safety should be a daily concern in our factories and offices. We should not wait until lives are needlessly lost before discussing how to protect ourselves, our family members, and our neighbors, at work. OSHA serves a valuable purpose as part of a safety system that should prevent needless personal injury and death.

However, OSHA often fails in its mission. That failure occurs because the agency has largely been held hostage to politics in Washington. It’s time to put worker safety first. The true cost of injuries, deaths, and disabilities from a lack of safety, is tremendous. A strong safety emphasis is good for our workers and it is good for the economy as a whole.

The tragic Texas events resulted in a discussion on MSNBC of OSHA that I felt was important. The clip is below:

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The video provides some startling facts about OSHA and its inability to protect workers from injury. These facts include the agency’s lack of inspectors. According to the video, OSHA has so few inspectors in Texas that it would take them 98 years to visit all the facilities in that state. The truth is that Congress has allowed politics to prevent the agency from adopting reasonable rules or hiring sufficient inspectors. One of the participants in the interview summed the problem appropriately by stating that OSHA was stretched too thin to think comprehensively about risk.

In Alabama, I have seen many devastating injuries at industrial and construction sites that could have easily been prevented. After these accidents and injuries, OSHA often did nothing to ensure that they did not occur again in the future. Safety is an issue that should concern all of us.

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OSHA Often Loses and Safety Suffers

The article title says it all — Even After Workplace Deaths, Companies Avoid OSHA Penalties. It’s a long article but a good read if you are interested in learning more about the impact of OSHA enforcement activities on safety in the workplace.

The story begins with a fatality at a steel mill in another state. Then, midway through the article, the author relates the story of a tragic work-related death in Alabama. In the Alabama case, a roofing contractor employee fell to his death because his employer failed to provide any fall protection and failed to guard against the fall hazards. This is a death that could have easily been prevented. The hazards were well known to the owner of the roofing contractor but not to the employees he hired and placed on the job without training. After inspecting the site of the fatality, OSHA issued fines to the employer.

The Alabama contractor’s complete failure to provide any safety protection is bad enough. Yet, the story gets worse. According to the OSHA inspector, the Alabama contractor placed safety guards at the scene after the death and then tried to lie to the inspector by claiming the materials were at the scene before the fall. I have seen employers attempt to change accident scenes in many of my past personal injury cases. In just the last few years, I have handled cases where a contractor on a Huntsville project purchased safety guards at a local hardware store after the accident to try and alter the scene. In another case, the owner of a Huntsville wrecker company purchased safety devices after a serious crush injury and tried to claim he had them before the accident. In a third case, a Decatur company claimed a warning light was prominently flashing at the time of the accident despite denials by all the other witnesses on the scene.

After being fined, the contractor in the article simply chose to ignore the penalties. He did not defend his actions. He did not pay the fines. He did nothing. His explanation for ignoring the fines — “Even if we had had the money, I would have refused to pay.” Should a contractor with so little regard for safety and human life be allowed to manage projects in the future? That’s the question I have. That’s the question we should all ask. The article answers this question. Despite no regard for safety or the authority of OSHA, the man who operated this company still works construction projects. He simply closed his company and went to work as a consultant for another contractor. He continues to be responsible for the safety and lives of workers in Alabama. Will another death or a severe personal injury occur because OSHA enforcement failed in this case?

 

 

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Safety — How To Make An OSHA Complaint

Safety practices that can prevent personal injury are a frequent topic of discussion in my law practice. After handling these cases for many years, I believe most serious injuries would have been prevented with very simple safety practices or procedures. However, some companies value immediate production over the long-term goal of keeping workers safe. In several areas, our laws fail to emphasize the goal of keeping our workers safe. Some of these areas are:

  1. The Alabama Workers’ Compensation Act does NOT reward companies that practice safety and does NOT penalize those companies that ignore safety. Our workers’ compensation laws should reward companies that have real practices and real procedures to prevent the needless injury or death of employees. At the same time, those few companies that place their workers needlessly at risk of injury should be penalized when accidents result.
  2. For public projects, our government should consider safety records before awarding contracts to build schools, roads, and other community projects.
  3. OSHA does NOT have sufficient manpower or resources to protect fully the workers in our communities from unsafe companies and dangerous practices.

Issues of safety are important to all of us. We all bear the cost of severely injured and disabled people in our communities. Although I believe our government should strengthen OSHA and its ability to promote workplace safety, the Agency’s employees do work hard to protect workers from needless danger. Sometimes, workers will call us and ask about making an OSHA complaint for an unsafe work site. HERE is the link to the instructions for making such a complaint.

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The Prevention Of Falls Is Essential To Construction Site Safety

Too often construction workers are placed at dangerous heights without adequate safety protections. Falls on construction sites are a major cause of work-related deaths and personal injuries.

The U.S. Department of Labor’s official blog recently published a post discussing fall prevention with some simple, excellent advice. The blog advises to:

  1. Plan ahead for safety
  2. Provide the right safety equipment
  3. Train everyone to use safety equipment

That’s good advice. Yet, it’s ignored far too often. I once tried a fall case to a jury where the company produced several thousand pages of documents related to the construction project – but only 2 of those pages were dedicated to the site safety plan. And, incredibly those 2 pages did not even address the equipment being used by the company to place workers at heights. On that project, keeping things moving and getting paid were more important than worker safety. As a result, a worker fell from a significant height and suffered a severe personal injury that left him totally disabled.

As the blog post states, falls are “the deadliest hazard in the construction industry.” Yet, they are also easily preventable. A failure to follow the advice to plan for safety, provide for safety, and train for safety, is not acceptable when lives are at risk.

 

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If Your Employer Ignores Safety Issues — OSHA May Be The Answer

Workers who call our office after an injury often describe unsafe practices that needlessly put lives at risk. Sometimes, supervisors disregard safety in an effort to complete a single task or meet a production demand on time. Other times, the lack of safety is company-wide and simply the way that company conducts its business.

Either way, the risk usually falls on workers and their families. Companies should create a culture of safety that prevents personal injury or death. Previously, I have written how the Alabama Workers’ Compensation Act unfairly places the burdens of safety on workers instead of corporations.

A recent event in Huntsville shows that a worker does have another method to address safety concerns when his bosses will not act safely. Recently, a worker at a local company claims he was fired when he refused to go back into a trench after an earlier collapse. After being fired, he called OSHA (Occupational Safety & Health Administration). Below is a link to the story about this incident on the website of a local news channel.

 

 Whistleblower lands Huntsville company in hot water.

After investigating the claims of this whistleblower, OSHA issued a $122,400 fine against the company, Don Kennedy & Sons. Here is a link to the OSHA news release. Collapses and cave-ins of trenches are a major safety issue. Many personal injuries and deaths result each year when unprotected trenches collapse. My observations of this story are as follows:

  1. The dangers of trenches are well-known in the construction industry. Additionally, the rules for protecting workers are well-known and easily followed. So, employers have no excuse for allowing a dangerous safety failure in this area.
  2. The amount of fine in this case is large. While I don’t know all the facts of OSHA’s investigation, the amount of the fine indicates OSHA found serious problems, such as multiple violations. The OSHA press release indicates that the company intentionally or knowingly violated the rules.
  3. Workers do have a voice. This worker lost his job. But, his refusal to act unsafely may have prevented his later injury. And, his courage in reporting the violation may have saved other workers from personal injury or death.
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Construction Safety Tips Start With A Job Hazard Analysis

Yesterday, I read an article which provided several basic construction safety tips. The author begins by citing the Construction Industry Cost Effectiveness Project’s estimate that approximately $8.9 billion dollars are spent each year in the U.S. as a result of accidents at construction sites. I have not studied those numbers. So, I cannot question their accuracy. However, most accident cost evaluations I have reviewed far underestimate the actual costs for several reasons. These include the fact that many injuries go unreported. Also, most cost estimates do not consider many of the huge costs that families dealing with significant injury and disability face.

The author then provides his 7 tips for construction site safety. They are:

  1. Review OSHA (Occupational Safety and Health Administration) safety procedures.
  2. Be aware of your surroundings.
  3. Use proper equipment.
  4. Lift safely.
  5. Enter and exit heavy equipment properly.
  6. Use safety when loading and unloading equipment.
  7. Test the strength of support structures.

These are excellent tips. They certainly should be followed on every construction site. However, I always go back to what I believe should be the essential requirement number 1 on every project. What is that requirement? It is a JOB HAZARD ANALYSIS. When a job begins (and before each new phase), management should conduct a job hazard analysis. This is a process that should look at all the activities and equipment involved with that phase of construction so that the entire process can be evaluated for safety. Management should include the workers in the process. After all, they will actually be performing the activities. When this analysis is completed, everyone on the project will have a clear view of what will be done and how it will be done safely. Sadly, management is often unwilling to devote even the small amount of time needed for this process. I believe the quickest way to eliminate disabling injuries is to plan for safety well before any worker faces the pressures of the actual work.

 

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Returning To Work After Injury – Remember These Tips

Yesterday, I read a great article from attorney Roger Moore which discussed the workers’ compensation issues involved in returning to work after an injury. Roger is a workers’ compensation attorney in another state. However, his advice is very helpful in Alabama as well.

I really cannot add anything to his advice. Issues related to an employee’s efforts to return to work can be very stressful to the employee and his/her family. After a severe injury, the most important issues are getting the medical treatment you need and returning to work. However, the insurance carriers are often motivated by something very different – the desire to cut costs. The motivation to cut costs can leave you still injured. It can leave you without needed medical care. And, it can cause you to go back to work before you are truly able to do the job physically or safely. Roger’s advice is very helpful to any worker dealing with our workers’ compensation system:

 

Returning to Work Shouldn’t Be This Hard

 

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Worker Safety Should Be A Top Priority For Government Contractors

Attorney Leonard Jernigan recently wrote a great post on the need to consider worker safety in awarding government contracts. Leonard discussed a government contract awarded to a construction company in his community with dozens of safety violations.

This issue is very important to North Alabama. The Federal government has many projects around the Huntsville area. Also, our entire area has seen rapid growth. That means more projects to build roads, schools, and other buildings. Keeping workers safe should be an essential part of this work.

I agree that our government contracting agencies should consider the safety history of companies when awarding project contracts. I would also add a second point. Government contracting agencies should also require a real safety plan from the contractor. Why do I use the phrase “real safety plan?” Because far too often, a written safety plan is just a formality for the contractor. Instead of real safety, the contractor simply submits a form that does not address real issues on a specific project. Several years ago, I represented a worker who suffered disabling injuries in a fall on a government project. That contractor’s form safety plan did not even address the equipment the worker was being required to use when he fell. In my case, the accident could have easily been prevented with a real safety plan that addressed the specific site. If we want to make safety a real priority, we will:

  1. Consider Contractor Safety History When Awarding Government Contracts; and,
  2. Require A Real Safety Plan That Addresses Site Activities.

These safety points are simple. When followed, tragic injuries can be prevented.

 

 

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Top 10 OSHA Violations of 2011

What were the primary OSHA safety violations in fiscal year 2011?  Before I get to the list, I’d like to add a little commentary. While driving, I will occasionally listen to talk radio.  Recently, a political commentator was strongly criticizing OSHA and claiming the agency did nothing but create more paperwork.  The commentator even went so far as to say that the agency’s top violations were just paperwork matters.  Perhaps this commentator has never worked around dangerous equipment.  The commentator was completely wrong in his opinions.  Maybe that commentator should be given a history lesson into the dangers of the American workplace before the basic protections of OSHA began.

The truth is that the safety standards most frequently cited by OSHA are standards that protect the lives of workers each and every day.  When companies do not follow these standards, they place their workers at great risk.  Personally, I think OSHA should be given greater resources to insure compliance with basic safety standards.  I do not believe OSHA has enough inspectors to insure adequate safety on job sites.

According to the Safety/NewsAlert site, OSHA’s Deputy Director provided the top ten list at the National Safety Council’s recent annual Congress.  What were the listed violations:

  1. Fall Protection in Construction
  2. Scaffolding in Construction
  3. Hazard Communication
  4. Respiratory Protection
  5. Lockout/Tagout
  6. Electrical Wiring Methods
  7. Powered Industrial Trucks
  8. Ladders in Construction
  9. Electrical General Requirements
  10. Machine Guarding

These are important safety standards that, when ignored, result in severe injury and death in our workplaces.  In the last year, I have tried cases involving one worker who fell from a lift on a construction site in Huntsville and another who was struck by an industrial truck in Decatur. Both companies could have easily protected their workers from those hazards at little or no expense.  In both cases, the lack of safety resulted in workers who are now totally disabled.

 

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