OSHA Compliance: The Paper Chase
Moran, Robert D., Occupational Hazards
Never underestimate the power of written documents. Safety information not put down on paper could put you in court.
Virtually every employer in the country is obligated by law to observe thousands of occupational safety and health requirements, keep detailed injury and illness records, adopt various safety programs, provide notification of the substances on their premises that are potentially hazardous, and do hundreds of other things in the interests of safety. OSHA's inspection results to date show that many employers are not doing it. Those that aren't are needlessly exposing themselves to potential trouble.
There are many reasons for OSHA noncompliance, but the principal one is simply not knowing what to do. It's sad but true, nevertheless, that ignorance of the law is no excuse.
The employers' obligations arise from the enactment of the Occupational Safety and Health Act of 1970 and the adoption since that time of innumerable OSHA standards, rules and regulations, as well as many state and local right-to-know and toxic control laws.
An employer who doesn't observe OSHA requirements could receive a citation and be fined. The size of those fines has been escalating dramatically. Recently, there have been reports of fines of as much as $7 million.
Yet receiving a citation and penalty for OSHA noncompliance is a relatively minor misfortune when compared to the potential trouble that could evolve from an employer's failure to observe standard safety practices, precautions and warnings, as well as that good old-fashioned bromide: "Be prepared."
In Black and White
Even for employers who have never received an OSHA inspection or citation, trouble can arise from a number of sources, not the least of which is the very existence of the written documents required to be created and maintained by OSHA and other regulatory bodies: the MSDSs (material safety data sheets), the hazard determination, warning labels and notices, the employer's written safety program, as well as other records and reports.
All of them have one thing in common: They are in writing and, in the eyes of the law, they are documents. Few people need to be reminded of the power of documentary evidence. It has literally brought down emperors, kings, chiefs of state, financial wizards, and business empires, not to mention those violent criminals who somehow managed to silence all eyewitnesses to their crimes but got caught by the ubiquitous IRS forms.
What may seem a document entirely innocent in its implications may in fact prove, in certain circumstances, to be dynamite. Former President Richard Nixon discovered that.
Some common questions being asked by employers are: Do I have all the written documents I'm supposed to have? Are they correct? Is there something there that could get me in trouble? Are there things I am supposed to be doing that I don't know about? Few employers are comfortable with their answers to these questions.
The "enforcement" that strikes fear into the hearts of management officials is not coming from OSHA inspectors. It's coming from state and local prosecutors and grand juries. They aren't issuing OSHA citations. They're serving indictments for murder, manslaughter, battery, and other crimes punishable by prison terms. Moreover, their interest in job-related deaths and injuries is expected to increase in the 1990s.
Illinois obtained indictments against Chicago Magnet Wire Corp., and five corporate officials, charging each with multiple counts of aggravated battery and reckless conduct under the Illinois criminal code. The charges arose out of a union's complaints that the firm's use of toxic substances subjected employees to disease and disability. There was no evidence that the firm exceeded OSHA's permissible exposure limits for the substances. The fact that employees were being injured by the company's activities was a crime under Illinois law, according to the indictments' charges. …