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Industry, beware: A tougher Occupational Safety and Health Administration has stepped to the forefront. After years of less-stringent, cooperative enforcement, the pendulum is swinging back toward more vigorous enforcement of OSHA standards, thanks to a chorus of calls from the media, labor unions, academia and politicians.

As most employers know, the Occupational Safety and Health Act of 1970 requires every employer to furnish a safe place of employment and to comply with all applicable workplace safety standards. The term 鈥渆mployer鈥� is defined broadly under the act to mean any person who employs people engaged in business 鈥渁ffecting commerce.鈥� OSHA has mandated specific standards that apply to employers in construction, manufacturing, wholesale and retail trade, utilities and transportation.

The winds of change

Many point to the Democratic control in Washington, D.C., as the reason for the renewed emphasis on enforcement. But the seeds of change were planted much earlier than the most recent Election Day. Two separate three-part series on workplace safety ran in The New York Times in 2003, and may very well have been the starting point for renewed focus on the issue. The first set of investigative articles, 鈥淒angerous Business,鈥� looked at the safety and environmental record of McWane Inc., one of the world’s largest makers of cast-iron pipes.

The other set of articles, 鈥淲hen Workers Die,鈥� examined how the government deals with the most serious cases of death on the job. A stream of additional media coverage since has covered noteworthy workplace deaths 鈥� including those of miners in West Virginia and Kentucky in 2006 鈥� and lamented a perceived weakening of OSHA enforcement. Labor and industry officials echoed this sentiment.

In April 2007, Congress weighed in by reintroducing a bill called the 鈥淧rotecting America’s Workers Act,鈥� designed to expand coverage under the Occupational Safety and Health Act by improving protections for whistleblowers and increasing penalties for certain violators. The bill has not yet become law, but President Barack Obama supports the bill, as well as tougher OSHA regulations. Many analysts believe that the new administration will turn its attention to workplace safety issues by the middle of the year.

Protecting workers and business interests

With momentum building toward stricter enforcement and bigger penalties for violations, companies should take the following steps immediately to prepare for a more punitive OSHA:

鈥� Audit and improve safety programs and written procedures

鈥� Implement and document discipline for OSHA violations

鈥� Consider safety 鈥渞esults鈥� in management compensation

鈥� Develop simple day-to-day inspections

鈥� Conduct mock OSHA inspections

鈥� Revise 鈥渁ccident investigation鈥� forms and procedures

鈥� Develop OSHA inspection guidelines

鈥� Structure your safety plan to satisfy federal sentencing guidelines

鈥� Increase management and front-line training

Employers also should educate themselves on how they can 鈥� to the extent possible 鈥� control OSHA inspections and how best to fight citations. When an OSHA compliance officer is on-site, it’s important to remember to:

鈥� Take the most direct route to an accident scene;

鈥� Answer questions from OSHA with brief, direct statements 鈥� ideally, 鈥測es鈥� or 鈥渘o鈥�;

鈥� Disclose only the information OSHA specifically requests;

鈥� Understand how to build defenses to disprove citations issued;

鈥� Consult with counsel for other best practices when it comes to securing the best result from an OSHA inspection.

Be willing to compromise

Finally, it’s important to remember that compromise is often the best way to deal with the federal government in these scenarios. OSHA must issue a citation within 180 days of the initial inspection. Once a federal citation is issued, employers have 15 working days from receipt of the citation to file a Notice of Contest with the OSHA area office that issued the citation.

During the period before the Notice of Contest is due, OSHA strongly encourages company officials to attend an informal conference at which they can introduce additional evidence showing that a citation was inappropriate, seek to negotiate the reduction of monetary penalties or discuss abatement dates. It is almost always worthwhile to attend the informal conference, even if it is likely that an employer will have to contest a citation. Use the conference to demonstrate a commitment to safety and to obtain information about OSHA’s theories. Also, employers often receive a 40-percent to 60-percent reduction in the monetary penalties for serious citations if they cooperate with OSHA and can show that they have already corrected the violations or will do so within an acceptable time period.

Rich Meneghello, a partner at the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or [email protected].