Comments from the construction industry to OSHA’s draft Safety & Health Program Management Guidelines supported the value of safety and health programs. Not surprisingly, comments to OSHA guidelines pointed out many things wrong with them. Throughout the comments there was one troubling message, and another consistent message:

  • Small business is more dangerous than big business
  • Small construction businesses either don’t have the resources, or can’t handle the complexity of implementing and managing safety programs using the new guidelines

Small Business Safety Record

If you do a search on the internet you can find plenty of sources reporting that small business establishments have more workplace deaths and injuries per capita than large businesses. One of the commenters to the proposed new OSHA guidelines, the North American Building Trades Union, even presented evidence of that fact along with its comments (check to dropdown below for the chart). This has particular importance to the U.S. construction industry since 75% of it is made up of businesses having 10 or fewer employees. If you factor in that construction has a high injury and death rate, small business gets put even more in the spotlight. Recently, 2014 revised figures show construction had 25 more deaths between the preliminary and final releases of the death statistics for that year. Those put its grand total at 899 deaths, a 9% increase over 2013.

There are a litany of reasons cited by safety professionals and others as to why small business has such dismal safety statistics. Here is the biggest reason — FEAR:

  • They fear having to comply with safety requirements
  • They fear getting help from regulators
  • They fear getting help from their insurance companies
  • They fear the costs of setting up and managing a safety program

Two small business safety issues are:

  • They don’t think they have the money or time to hire safety consultants and implement their advice
  • They feel things are already safe, at least up until something happens

Small Business Safety Confidence

Clearly, small business needs quite a bit of confidence building to overcome its fears about making its workplaces safer. But it’s interesting that many comments to the proposed guidelines serve more to erode confidence. If others think of small construction businesses as run by unsophisticated, simple business people who can’t deal with complexity, they do them a disservice. After all, these same small businesses seem perfectly capable of managing complex, multiplayer projects; complicated financial reporting and transactions; and can move two-dimensional drawings into the third dimension using a vast array of disparate materials and tools. With small business’ marginal safety record, maybe it’s time to buck the fear, and bring the same expertise applied to any other business activity to bear on safety.

There was a third trend in the comments and that had to do with how well the new guidelines fit construction. Several commenters said they thought construction should have its own guidelines due to how different it is from other industries like manufacturing. For construction businesses every project is unique, happens in a different location, and involves multiple parties under their own leadership.  Something specific to that type of business environment would be beneficial.

Here is a link to the current guidelines for comparison’s sake. Below there are synopsis of responses to the proposed guidelines from organizations associated with construction. In the tabbed sections there are comments taken directly from the comment documents.

Comments to OSHA Guidelines

North American Building Trades Union

The North America Building Trades Union questioned the benefit of the new guidelines for small contractors. Contractors with 10 or fewer employees account for at least 75% of all U.S. construction firms. NABTU commented that small employers were often exempted from specific OSHA regulations, and that OSHA’s targeting system doesn’t focus on small employers. The organization commented that because of those aspects, “it is well-documented that working in small businesses is much more hazardous in the construction industry.”

NABTU also thought the guidelines didn’t account for construction’s mobile and temporary worksites.

 

Small is more dangerous

The Guidelines, as currently written, fall short of being an effective tool for small employers in construction. As we point out below, many of the proposed action items are unrealistic for small construction employers, and the Guidelines do not provide employers with a basis for prioritizing and evaluating the proposed action items. An example of a more effective approach is the International Social Security Association’s (ISSA’s) recently-released Vision Zero Guideline, which attempts to accomplish the same objectives as the OSHA Guidelines, and applies to employers in all industries. – NBTU Comment

We also question whether the Guidelines are designed for the many types of worksites that are mobile and temporary, as are most construction sites. The European Union, in its Directive 92/57, made a great attempt to address this important void in OSH policy. Even though we recognize from past experience the risks associated with developing separate rules for construction and general industry, we believe this is an instance in which OSHA should consider developing safety and health program management guidelines that address the unique nature of the construction industry. – NBTU Comment

AFL-CIO

The American Federation of Labor and Congress of Industrial Organizations commented that the draft guidelines “provide a sound framework for developing effective safety and health programs and are a major improvement from the current 1989 guidelines.” The organization questioned the value of the new guidelines to small business, especially those without formal safety management programs. AFL-CIO also thought the guidelines were too heavily skewed toward businesses with “fixed” workplaces, like those in manufacturing. The other areas the union also thought were omitted included guidelines on exposure assessment, exposure monitoring and medical surveillance. The organization also stressed that worker involvement should be strengthened “by integrating recommendations for worker participation into the particular aspects of the program including Hazard Identification and Assessment, Hazard Prevention and Control and Education and Training.” And, the AFL-CIO commented that OSHA should incorporate the latest policies on protecting whistleblowers and preventing retaliation.

The agency’s expertise is in hazard assessment and control, not in management systems. It is appropriate and useful for the guidelines to include elements stressing the importance of management leadership and the importance of a systematic and comprehensive approach to safety and health. But in our view the guidelines first and foremost should be designed to help employers and workers develop and implement comprehensive effective safety and health programs.AFL-CIO recommends that the title of the guidelines reference “safety and health programs,” not “occupational safety and health management systems.”

The draft uses terminology like “industrial sectors” (page 3) instead of broader terminology (e.g. “economic sectors”). It also fails to mention or include hazards like ergonomic hazards, workplace violence, work organization and inadequate staffing levels which pose significant hazards to many workers.The guidelines should be broadened to include terminology, provisions, hazards and control measures that are appropriate for a broader range of sectors (e.g. health care, services, public sector and construction). This broader framework could then be supplemented with other guidelines or tools that are more specifically tailored to particular sectors (e.g. construction or healthcare) and the hazards and work arrangements in those sectors. – AFL-CIO

The final guidelines should include specific provisions on exposure assessment, exposure monitoring and medical surveillance. Worker participation is critical in most aspects of a safety and health program, but other individual elements of the program guidelines have very weak or minimal recommendations for worker participation. The guidelines could be strengthened by integrating recommendations for worker participation into the particular aspects of the program including Hazard Identification and Assessment, Hazard Prevention and Control and Education and Training. – AFL-CIO

The draft guidelines do include provisions on anti-retaliation. But the provisions are fairly minimal and do not incorporate OSHA’s latest policies on anti-retaliation or the sound recommendations on Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation made by OSHA’s Whistleblower Protection Advisory Committee(WPAC). Incorporating and referencing these latest policies and recommendations would greatly strengthen the safety and health program guidelines. – AFL-CIO

As stated above, the AFL-CIO applauds the inclusion of the core element on “Coordination and Communication on Multiemployer Worksites.” This is a critical new element that will help employers ensure that all workers working at a multi-employer worksite are protected. We recommend that both the final NACOSH Temporary Worker guideline and accompanying tools be included in the list of tools and resources in Appendix A of these final guidelines. – AFL-CIO

The Associated General Contractors of America

Similar to other commenters, the AGC questioned the value of the new guidelines to small and medium sized businesses. The organization also thought OSHA should do more to convince people that the guidelines wouldn’t be used to “create regulatory compliance responsibilities.” In AGC’s responses to OSHA questions, the contractor association wrote that:

  • The attempt by the guidelines to encourage continuous improvement has “a regulatory tone”
  • The revised guideline is too complicated
  • OSHA overlooked the issues with multi-employer jobsites
  • The guidelines referenced consensus standards inconsistently
  • Small employers with limited resources will find it difficult to implement the guidelines
  • There needed to be more consideration for construction’s unique circumstances

While there are large and medium sized employers that understand the complexity of a safety and health management system, many small employers with limited resources may look at these guidelines and view a comprehensive safety and health management system as too complex to develop, implement and maintain. The agency should consider developing a separate set of guideline for these employers, especially those in construction. More construction centered tools needed to help small companies such as job hazard analysis (JHA) tools and safety and health program templates.Appendix B is misleading and confusing and potentially overwhelming for small businesses. OSHA should separate 1910 and 1926 references. …Supporting a comprehensive safety system can present a burden on the resources of a small company. If the guidelines are not revised to take this reality into consideration for these companies, outside assistance will be needed to implement. OSHA must remember that many of these small employers are run by individuals who have many responsibilities including safety. – AGC

Although the agency states that the guidelines are advisory and informational in content, we are concerned that the guidelines are an attempt to create regulatory compliance responsibilities. AGC believes that OSHA should state more clearly that the guidelines are indeed voluntary and will not be used to support any Section (a)(l) citations. AGC members perceived this question to have a regulatory tone. And while the guidelines promote continuous improvement, the proposal offers no measurements as to what OSHA would consider acceptable or serve as a benchmark to judge “being effective” for either the Construction Manager, General Contractor, or lower tier subcontractors. This gives the appearance that OSHA representatives will evaluate a sufficient but unchanging program as not meeting the requirements to continuously improve. What will the measurements be and how will they be addressed on a multi-employer job site? – AGC

OSHA has overlooked how the multiemployer concept applies to construction. One guideline for all industries does not work, especially for construction due to the transient workforce. OSHA must also take into consideration the multi-employer citation policy and any potential conflicts between that policy and the guidelines. …It significantly underestimates the complexity of typical construction jobsites, with dozens of companies operating simultaneously. In fact it is our view, that Controlling Employer has purposely been omitted and referenced as “Host Employer” and even that references only Owner andGeneralContractor.

AGC believes that a basic format for a written safety program would assist and enhance the probability that small and medium size contractors would embrace a more salient safety culture, however, not at the expense of the CM/GC becoming “at risk” for the subcontractors incompleteness in any given category ofthe program. Construction Managers and General Contractors should be in a position to assist, advise and co-ordinate in a “help mode” but not be held liable for their compliance. This clearly demonstrates OSHA’s mindset that the “big” contractor shall also be responsible for the “small” contractor and the ability and means for the big contractor to oversee, train, supervise, co-ordinate and enforce safety for all workers a multi- employer worksite is no issue. – AGC

There are significant inconsistencies with the referenced consensus standards in the Guideline. This only creates confusion for all businesses that attempt to develop plans according to the guideline. Additionally, there have long been concerns regarding accessibility of these consensus standards which most, if not all, are for purchase. For many companies referencing the consensus standards looks like a requirement and will be confusing. – AGC

The National Association of Homebuilders

The National Association of Homebuilders wrote that “OSHA’s recently revised draft of Safety and Health Program Management Guidelines is not useful or helpful to employers in the home building industry.” NAHB also wrote that it believed the section on multi employer worksites wasn’t within OSHA’s authority, and that it was concerned with how OSHA would use guidelines for enforcement purposes. The association then went on to promote its own efforts in advancing safety, and promoted a safety program of its own design.

As written, the guidelines lend themselves to subjective interpretation on what would be considered an “effective” program and thus, could lead to inconsistent application and inappropriate citations against employers. NAHB believes OSHA’s November 2015 Draft Guidelines, unlike NAHBs Home Builders’ Safety Program Manual, are not useful or helpful to the home building industry as they are written.

  • too large and complex for small and medium-size home building businesses to use…reducing the guidelines down to a page about company safety plans, including a small statement about management endorsing the company’s safety plan, and a couple of pages each on controlling the focus four safety hazards (i.e., falls, electrical, struck-by, and caught-in).
  • the guidelines are burdensome…Because most small builders don’t have the staff or resources to dedicate one employee for developing and implementing a safety program, OSHA’s November 2015 Draft Guidelines, as written, are not useful to this key segment of the construction industry.
  • the guidelines are inappropriate for small to mid-sized companies…Any guideline needs to allow for the flexibility to right-size a program to meet a particular employer’s needs and further allow it to be replicated for each work location, such as a home jobsite or remodeling project. – NAHB

…Safety programs, which generally focus on compliance, are less complex than safety management systems, which tend to focus on performance. Small businesses need to focus on developing and implementing safety programs that are simpler and more focused on the hazards and risks they face in their work environment.OSHA has not used language that is appropriate for, and easily understood by small business. Instead, OSHA has needlessly complicated the document.

National Roofing Contractors Association

The National Roofing Contractors Association generally liked the guidelines and took one exception to the omission of worker discipline. The NRCA wrote that:

“In its positive connotation, discipline is an effective teaching tool and is endemic to successful training. The lack of inclusion is surprising. In 1989, when the original guidelines were issued, OSHA addressed the significance of worker discipline in an effective SHMS… The four-step disciplinary process is a critical component of a vital SHMS and is recognized by a number of state plan states in regulatory provisions or sample safety or accident prevention programs offered as resources for employers operating in the states.

The guidelines fail to even mention the word discipline and yet ask for accountability…Accountability for safe work practices is imperative throughout all levels of an organization. A number of factors may result in work practices not being followed and some are set out in the guidelines. However, worker misconduct is one such factor that is not addressed and a reader would benefit from content that describes how discipline for such misconduct may be handled.”

American Society of Safety Engineers

American Society of Safety Engineers wrote that the executive summary should be more thorough and more strongly emphasize “leading indicators” as working best in safety. ASSE also thought the worker participation aspects were unclear, and the section on hazard assessment should be more practical and be an “outline of the real causes of incidents, including near-miss incidents.” The organization wrote the hazard prevention section should include “prevention through design’ and more detail on controls.

ASSE urges OSHA to include some discussion of the importance of leading indicators. When those in management read the guidelines, they should have some notice that leading rather than trailing indicators are what work best in safety. As discussed at the March 10 stakeholder meetings, ASSE encourages OSHA to bring together stakeholders to help build a better understanding of and resources on leading indicators.Our members have seen success looking at indicators that focus on the involvement of the workforce such as safety committees, hazard identification programs like inspections, and safety suggestion programs. – ASSE

ASSE is concerned that, the way the section is written, it may be unclear that the employer is responsible for writing and developing a safety and health management program, not employees. Employees, though, must be involved in the development process and should be able to know from the guidelines what involvement specifically can mean. More concrete examples of how to involve employees are needed so employees can understand better how to ensure that their voices are part of the process.- ASSE

The focus of this section should be to provide a more practical outline of the real causes of incidents, including near-miss incidents. Specifically, Action Item 5, “Characterize the nature of identified hazards, determine the controls to be implemented, and prioritize the hazards,” should not be the last program element, but the second.In addition, a process flow approach with illustrations of high risk factors should be used. The document needs to walk employers through the worksite inspection process since the employers most in need of this information probably have not experienced a safety and health inspection.

It is in this section especially that references to national consensus standards from ANSI, NFPA, ASTM and others need to be included to help employers address a variety of the more common hazards. ASSE believes more work is needed in providing more definitions for many of the terms used in this section. For example, it is important that employees of smaller businesses understand the definitions of recordable injuries, lost time injury, an injury that results in restricted work activity, and near miss incidents. – ASSE

Also needed in this element is much more detail on controls selection and application, including obtaining input from employees after management has evaluated feasible controls. For Action Item 4 on non-routine operations and emergencies, links to FEMA and CDC websites are needed. For Action Item 5, ASSE urges OSHA to make the second bullet the first in order to help readers understand risk prioritization. For Action Item 6, more guidance is needed on how audits are conducted to determine effectiveness of controls.

When addressing root cause analysis – which should be done for both actual incidents and for “near miss” investigations – employers should be encouraged here to look at contributing causes across the entire spectrum of “people-process-equipment” and to use a team investigative approach. – ASSE

Small business safety record reflected in comments to OSHA guidelines
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