Is OSHA  
Over-Ruling?  
According to OSHA, the concept is  
porting requirements to a con- dozens of OSHA regulations make akin to the sanitary grades that restau-  
troversial crystalline silica rule workplaces safer in ways most people rants display.  
Agency’s Rulemaking Spree  
has Industry on Edge  
b y T r e y B a r r i n e a u  
rom stringent new injury-re-  
And while there’s little doubt that  
F
that’s led to legal challenges, the Occu- rarely notice, the current wave of reg-  
pational Safety and Health Administra- ulations should grab a lot of attention poor management, no employer wants  
“Since high injury rates are a sign of  
tion (OSHA) has been busy lately.  
Maybe too busy, if you ask many  
business owners.  
from glass manufacturers and installers. to be seen publicly as operating a dan-  
gerous workplace,”says David Michaels,  
Put Everything Online assistant secretary of labor for occu-  
Perhaps the biggest recent change is pational safety and health. “Our new  
“I think most companies are kind  
of overwhelmed by all this in an ‘oh a new requirement that will put the en- reporting requirements will‘nudge’em-  
my gosh, Big Brother’ kind of way,” tire injury and illness history of most ployers to prevent worker injuries and  
says Terry Burkhalter, an authorized U.S. companies into a searchable online illnesses to demonstrate to investors,  
OSHA instructor and vice president of database.  
job-seekers, customers and the public  
risk control services with Willis Towers  
Watson in Knoxville, Tenn.  
In May, OSHA implemented the “Im- that they operate safe and well-man-  
prove Tracking of Workplace Injuries aged facilities. Access to injury data  
The agency clearly does important and Illnesses” rule. It requires employ- will also help OSHA better target our  
work that saves lives. According to the ers in high-hazard industries, including compliance assistance and enforce-  
Bureau of Labor Statistics, 4,821 work- manufacturing and construction, to ment resources at establishments where  
ers died on the job in 2014. By com- send injury and illness data straight to workers are at greatest risk, and enable  
parison, when the government created OSHA every year. The agency will then ‘big data’ researchers to apply their  
OSHA 43 years ago, there were more post that information on its website.The skills to making workplaces safer.”  
than 14,000 occupational fatalities in new requirements take effect November Burkhalter says there’s an admirable  
the U.S. each year in a workforce that’s 1, 2017. The reporting provisions of the motive behind the new rule.  
about half the size of today’s.  
rule will take effect on January 1, 2017.  
“I like the accountability factor,” he  
The Bottom Ten  
The most OSHA safety citations in the building materials industry:  
Based on OSHA statistics from January 2011 to March 2014.  
1
2
3
4
5
. Forklifts.....................................................71  
. Failures of hazard communications..38  
. Respirators..............................................29  
. Wiring.......................................................28  
6. Electrical.........................20  
7. Fire Extinguishers..........18  
8. Woodworking................18  
9. Exits .................................18  
. Guardrails/holes....................................22 10. Machinery.......................15  
Source: The Learning Factory  
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The Good Guys  
While OSHA violators often grab the head-  
lines, the agency also thinks it’s important  
to recognize companies that get safety right.  
OSHA’s Voluntary Protection Program  
Here are some companies  
in the glass industry that  
participate in the VPP:  
VPP) “promotes effective worksite-based  
(
Azko Nobel  
Dow/DuPont  
Valspar  
safety and health,” according to OSHA’s  
website. “In the VPP, management, labor  
and OSHA establish cooperative relation-  
ships at workplaces that have implemented  
a comprehensive safety and health man-  
agement system. Approval into VPP is OS-  
HA’s official recognition of the outstanding  
efforts of employers and employees who  
have achieved exemplary occupational  
safety and health.”  
Source: OSHA  
says. “In the past, OSHA didn’t know talizations or the loss of an eye within  
your safety record unless for some 24 hours.) “That’s pretty much over-  
reason they came in there or they peti- whelmed them.”  
tioned you to send it in for the Bureau  
of Labor Statistics surveys. But really, compliance. What will huge corpo-  
there was no penalty if you didn’t.” rations have to do to meet the new  
However,he says the new flood of in- requirements?  
A host of questions arise around  
jury and illness data could be grounded  
“If they’ve got 142 locations, how are  
in more mundane concerns, such as an they going to report that to OSHA?”  
effort to overcome one of OSHA’s most Burkhart said. “One report or 142 re-  
persistent problems—understaffing.  
ports? There will be a lot of discussion  
In 2015, OSHA’s Michaels told a con- around that.”  
gressional hearing that it would take  
his agency 140 years to inspect every ing rule would affect smaller compa-  
It’s also possible that the new report-  
There are other legal, ethical and  
U.S. workplace at its current staffing nies more than larger ones, because moral issues surrounding the new rule,  
levels.That’s because nationwide,there they’d be more likely to attract OSHA’s which several organizations pointed  
are only 1,840 inspectors to cover eight attention.  
million workplaces, according to the “If I’m G.E.and have ten accidents in  
out when it was announced.  
“OSHA created a rule that does  
2
016 Death on the Job report from the 500 plants, I can kind of hide that in nothing to achieve its stated goal of  
AFL-CIO. the numbers,”Burkhalter says.“It looks reducing workplace injuries and ill-  
I think the general purpose of the like a much smaller percentage. But if nesses and ignored the concerns from  
new rule is to have information flowing I only have one facility and there’s two industry that this rulemaking will have  
into (OSHA) so they’re more efficient in incidents, that could look really bad to unintended negative consequences,”  
getting out and making inspections of OSHA. Right now, we don’t know the said Greg Sizemore, the vice president  
companies they view as having potential criteria they’re going to use to inspect.” of health, safety, environment and  
problems based on what they’re seeing  
in the OSHA logs,”Burkhalter says.  
Another major area of concern is the workforce development for Associated  
rising use of temporary workers. Ac- Builders and Contractors (ABC). “In  
While “big data” and better target- cording to a 2015 study by the Center departing from its current ‘no fault’  
ing of enforcement might help, those for Construction Research and Train- recordkeeping system, OSHA has em-  
chronic low staffing levels could make ing, temps represent about 13 percent powered itself to disseminate records  
implementing the new rule difficult, of workers in construction and about and data to the public that fails to show  
says Burkhalter.  
3.5 percent of laborers in manufactur- the complete narrative of a company’s  
lot of information that OSHA’s about facility or on your jobsite, it’s on you.  
Obviously,that’s going to be a whole ing.If one of them gets hurt inside your safety record or its efforts to promote a  
safe work environment.”  
to receive, and they’ve been pretty  
swamped since January 1,” he says. Burkhalter.  
That’s when the new Severe Injury  
“Temps go on your OSHA log,” says  
Sizemore also said OSHA has “ex-  
ceeded its authority by forcing com-  
“All workers, including temporary em- panies to reveal confidential business  
(
Reporting Program went into effect. It ployees, deserve a safe and healthy work- details to the public”and“will give com-  
requires employers to report work-re- place,” Bill Fulcher, director of OSHA’s  
lated amputations, in-patient hospi- Atlanta-EastArea Office,said in a release.  
continued on page 56  
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September 2016 | USGlass, Metal & Glazing  
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OIsvOerS-RHuAling?continued from page 55  
petitors undue access to business pro- that will result when incidents, such when they’re trying to organize,” Bur-  
cesses that should remain conf dential.” as bee stings, slips and falls, and even khalter says. “That’s one of the big  
The Coalition for Workplace Safety heart attacks that do not ref ect an em- sticks they use. Everybody knows the  
(
rulemaking process for electronic re- Publicizing this data makes the mere union. Who’s going to have access to  
cordkeeping,said the new measure will recording of any injury an act of disclo- this information?”  
CWS), which participated in the ployer’s safety culture are posted. current administration is very pro-  
hurt U.S. businesses.  
sure with associated negative impacts.”  
Other problems that could arise cern among lawyers he’s talked to is the  
But Burkhalter says the biggest con-  
“Without authority to do so, OSHA  
intends to post employer, location and include worker recruitment and re- security of the information that’s being  
incident specif c injury data,” CWS co- tention, especially at a time when the sent to OSHA.  
chairs Marc Freedman and Amanda manufacturing and construction sec-  
“As with any program you roll out,  
Wood said in a joint statement. “The tors are facing unprecedented labor you have to kind of wait and see, but  
CWS is especially concerned about shortages; negative advertising that how secure is this information from  
the damage that could come from the uses information from the new OSHA hacking, and who’s got oversight of it  
disclosure of sensitive and proprietary database; and organizing efforts by on the other end?” he says.“Other than  
information—which companies go to labor unions.  
just the privacy issues, you’ve got the  
great lengths to protect. Just as trou-  
bling will be the mischaracterization ing up the safety record of a company  
“Unions are notorious for throw-  
continued on page 58  
Be Careful Out There  
Teachable Moments: Close calls  
Glass is Heavy: The weight of glass  
and near-misses inside a plant can can’t be underestimated, Burk said.  
be scary, but it’s important to find out “You can’t just guess. It may be a tri-  
what happened, why it happened and ple unit, it may be laminated. It may be  
what you can do to prevent it from thicker than you would’ve guessed.”  
happening again, Burk said. Addition-  
Stay Inside the Forklift: Forklifts  
ally, employees should be assured are immensely useful, but they’re also  
that they won’t be punished, because the No. 1 workplace hazard. OSHA  
it might make them afraid to report statistics show that 80 to 100 work-  
Experts in the glass industry  
share their tips for a safer  
workplace.  
accidents.  
place deaths a year are attributable  
Watch for Workarounds: Burk says to the motorized vehicles. One rea-  
these jerry-rigged shortcuts are a son they’re so dangerous is because  
sure sign that something is wrong. “If they’re prone to tipping over. When  
Don’t Be Complacent: Mike Burk you’re walking around the plant and they do, many operators panic and try  
of Fenestration Fundamentals LLC, see things like sticks and pokers, peo- to exit the vehicle, resulting in death  
who chairs the Insulating Glass Man- ple working around these things, ask, or severe injury. Experts say it’s much  
ufacturers Alliance’s glass safety ‘What’s wrong with this process?’” safer to stay inside a forklift when it  
awareness program, told members he said. “If you find this stuff in the tips over.  
at a recent meeting of the American working area, remove it, and find out  
Watch the Wiring: Exposed wiring  
Architectural Manufacturers Associa- why they’re using the device. They can is at the forefront of potential OSHA  
tion that it’s important to remain vig- get pretty creative when they don’t to citations, said Regina McMichael of  
ilant about conditions in your plant, want shut down production.”  
as well as the state of your employ- Beware the Bottlenecks: Places safety webinar. So cover it up. “For the  
ees’ personal protection equipment in a window plant where production kind of exposures we have, the only  
PPE). crawls to a halt and materials stack appropriate solution is to engineer the  
Wear the Best: Speaking of PPE, up can be dangerous, says Mike hazard away,” she said. “The best pos-  
the Learning Factory during a recent  
(
Burk said glass companies should McHugh of Integrated Automation in sible solution [could be] to quite sim-  
ensure they’re using the “latest and Bedford Heights, Ohio. Glass is the ply put a cover on [exposed wiring].”  
greatest.” Also, be clear on the pur- most notable hazard. “We have been  
Take a Hike: McMichael also urged  
pose/capabilities of each piece of creative with glass loading,” he says. business owners to frequently inspect  
PPE. “Stress the fact that it’s not ‘cut- “That and gas filling are the biggest their facilities for problems. “Walk  
proof,’ but that it’s ‘cut-resistant,’— bottlenecks in the plant—mainly glass your site,” she said. “Look and fix as  
things like that,” he said.  
loading.”  
you go.”  
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OIsvOerS-RHuAling?continued from page 56  
potential for people losing informa-  
tion or making it available where it  
shouldn’t be.”  
Helpful  
Regulations  
Many OSHA regulations  
The Silica Rule  
have helped the glass industry  
create safer workplaces. In 1974, the agency estab-  
In March, OSHA created a big stir in  
the glass industry when it issued the  
f nal version of its controversial silica  
rule, which aims to limit workers’ ex-  
posure to crystalline silica.  
lished a permissible exposure limit of 1 part per million for  
workers exposed to vinyl chloride, a flammable, carcinogenic  
gas that’s used to make polyvinyl chloride (PVC), or vinyl. OSHA’s  
standard slashed worker exposure to the gas and made the PVC production  
process more efficient. Thanks in part to that, sales of vinyl windows took off,  
and they now represent about 70 percent of the U.S. market, according to the  
American Architectural Manufacturers Association (AAMA).  
In 1989, OSHA issued the lockout/tagout standard. That helps protect  
employees from the unexpected start-up of machinery and equipment  
during maintenance. According to OSHA, the standard prevents an estimated  
120 fatalities and 50,000 injuries each year in manufacturing facilities.  
OSHA has also established many construction-related safety standards  
that make installations much less dangerous in areas such as fall prevention  
and personal protection equipment (PPE).  
The rule, which has been in the  
works since 2013, reduces the permis-  
sible exposure limit (PEL) for respira-  
ble crystalline silica to 50 micrograms  
per cubic meter of air, averaged over  
an eight-hour shift. It also requires  
employers to implement engineering  
controls, offer medical exams and de-  
velop a control plan.  
The glass and construction industries  
are pushing back hard against the new  
regulation, and in April, eight construc- and omissions that account for the large Watson. But only 13 were determined  
tion industry organizations f led a peti- discrepancies with the CISC report.” to have merit, 954 were dismissed and  
tion for review of the rule with the U.S.  
Court of Appeals for the Fifth Circuit.  
Other groups expressed concern and posed to respirable crystalline silica in  
OSHA says approximately 2.3 million 427 were withdrawn. A similar pattern  
workers, mostly in construction, are ex- extends back to at least 2010.  
Again, staff ng is a major concern. A  
criticism. their workplaces. It estimates the rule 2010 story from Mother Jones detailed  
Glass Association of North America “will save over 600 lives and prevent the heavy workload for OSHA’s small  
GANA) executive vice president Bill more than 900 new cases of silicosis each group of whistleblower investigators.  
(
Yanek says silica is indispensable to year” and “is projected to provide net “A whistleblower investigator can  
f at glass production, adding that the benef ts of about $7.7 billion,annually.” realistically handle six to eight cases  
industry has worked hard to reduce  
workers’ exposure to it.  
The construction and general indus- at a time, OSHA says. But in several re-  
try standards took effect on June 23. gions of the country, they average 20 or  
“Requiring the f at glass manufac- The construction industry has until more,” the magazine reported. “In one  
turing industry to completely redesign June 23, 2017 to comply, while the gen- region, the average is a whopping 32  
their operating furnaces and other eral industry has until June 23, 2018.  
manufacturing equipment and pro-  
open cases—and one investigator had  
69, according to data obtained under  
the Freedom of Information Act.”  
cesses is not merely unreasonable as Whistleblowers  
a matter of policy but also beyond OS- Anonymous  
Ironically, perceived problems  
Whistleblowers have been a big within the program have even led to  
HA’s legal authority,” says Yanek.  
Last year, the Construction Indus- focus for OSHA since it was established a whistleblower lawsuit recently being  
try Safety Coalition (CISC) released a in 1970. The agency safeguards work- f led against OSHA by one of its former  
study claiming the rule will cost the ers from retaliation for providing pro- employees.  
U.S. construction industry $5 billion tected information to their employers  
per year—roughly $4.5 billion per or the government.  
year more than OSHA’s estimates. The  
According to a report from investi-  
gative news organization Fair Warning,  
It’s also an area that has the po- Darrell Whitman claims he lost his job  
coalition cautioned that the f awed cost tential to generate the most revenue as an investigator with the San Fran-  
estimates ref ect deeper problems with for the cash-strapped agency. Most cisco regional off ce of OSHA’s Whis-  
the rule and urged the federal agency whistleblower penalties include f nes tleblower Protection Program because  
to reconsider its approach.  
that can range from f ve to six f gures. he complained to agency off cials in-  
OSHA ref ects a fundamental misun- the workers involved.  
The cost and impact analysis from That’s on top of years of back pay for cluding Labor Secretary Thomas Perez  
—that many legitimate whistleblower  
derstanding of the construction in-  
In 2014, 1,865 whistleblower com- cases weren’t being prosecuted.  
dustry,” reads a CISC statement. “The plaints were f led with OSHA, accord-  
OSHA analysis included major errors ing to statistics from Willis Towers  
continued on page 60  
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majority of employees, threatens to  
disrupt OSHA’s primary mission by  
embroiling the agency in representa-  
tion organization and community dis-  
putes,” Huggett wrote in an April 2013  
post on his f rm’s website.  
Severe Violators Program  
In 2010, OSHA launched the Severe Violators Program. Its purpose was to  
name and shame” companies with especially egregious safety records.  
A recent report from Business Insurance reveals that about 520 companies  
are currently on the list, and roughly 60 percent of those are in construction.  
Most of those businesses are cited for failing to protect workers from fall hazards.  
According to OSHA documents, it takes a minimum of three years to get off  
the severe-violators list.  
Another Littler attorney, Maurice  
Baskin, testif ed before the House Sub-  
committee on Workforce Protections  
in February 2014 that Fairfax’s letter  
violates the National Labor Relations  
Incentives—  
Positive and Negative  
In July, OSHA announced that it will Act and the Occupational Safety and  
delay enforcement of this part of the Health Act.  
Does your workplace have an in- new injury and illness tracking rule  
“By allowing outside union agents  
centive plan in place that rewards em- until November 1. OSHA said in a re- and community organizers access to  
ployees for accident-free days? (Think lease that it’s delaying implementation non-union employers’ private prop-  
paycheck bonuses,small prizes or even “to conduct additional outreach and erty, OSHA is injecting itself into la-  
pizza parties.) How about blanket drug provide educational materials and bor-management disputes and casting  
testing requirements in the aftermath guidance for employers.” But days be- doubt on its status as a neutral enforcer  
of an accident? If so, you might want fore the announcement, a coalition of of the law,” Baskin said.  
to reconsider both policies in light of business groups, including ABC and  
At the same hearing, attorney Randy  
recent OSHA actions. the National Association of Manufac- Rabinowitz presented the pro-labor ar-  
In March 2012, Richard Fairfax, OS- turers (NAM), f led a lawsuit in U.S. gument, saying that OSHA has always  
HA’s deputy assistant director, sent a District Court for the Northern District honored employees’ right to choose  
memo to the agency’s regional admin- of Texas challenging the anti-retalia- their own representatives during safety  
istrators and Whistleblower Program tion provisions of the reporting rule. inspections.  
managers that laid out acceptable The groups say it “will limit post-acci-  
and unacceptable safety incentive dent drug testing and safety programs long-standing policy,” she testified.  
programs. that contribute to jobsite construc- “In 1970, when OSHA’s inspection  
Some employers establish programs tion safety,” such as incentive contests regulations were f rst published, em-  
that unintentionally or intentionally that award prizes to workers for ployer-employee relations were much  
“The (letter) simply clarifies this  
provide employees an incentive to not injury-free days.  
different than they are today. Then, a  
workplace either was unionized or it  
was not. Today, a mix of non-tradi-  
Can OSHA take part in union activi- tional advocacy groups may represent  
report injuries,” Fairfax wrote. “For  
example, an employer might enter all Unions and OSHA  
employees who have not been injured  
in the previous year into a drawing to ties? For decades, it seemed the answer the interest of workers who do not  
win a prize, or a team of employees was a def nite no. But that might be belong to unions. Non-employee  
might be awarded a bonus if no one changing. representatives can often help OSHA  
from the team is injured over some  
In February 2013, OSHA’s Fairfax understand the complex employment  
period of time. Such programs might sent a letter of interpretation to Steve relationships between staff ng agen-  
be well-intentioned efforts by employ- Sallman, a health and safety specialist cies, subcontractors and employers.  
ers to encourage their workers to use with the United Steelworkers Union, They can help OSHA identify past ac-  
safe practices. However, there are bet- asserting that union representatives cidents and common safety hazards.  
ter ways to encourage safe work prac- can accompany OSHA inspectors at And, they can help workers who do not  
tices, such as incentives that promote non-union worksites.  
speak English effectively or who are  
worker participation in safety-related  
According to Ben Huggett of the Lit- wary of government inspectors to com-  
activities, such as identifying hazards tler law f rm in Philadelphia,“this rul- municate their concerns to OSHA.” n  
or participating in investigations of in- ing contradicts the plain language  
juries, incidents or ‘near misses.’”  
of OSHA’s governing regulation  
Post-accident drug testing, mean- as well as longstanding agency  
while, could become a thing of the past guidance and past interpretations.  
under OSHA’s new reporting rule, be- OSHA’s action in allowing unions  
cause the agency thinks it might make and other organizations to partici-  
employees think twice about going on pate in its inspections, even where  
T r e y B a r r i n e a u is the  
editor of DWM Magazine.  
USGlass assistant editor  
N i c k S t . D e n i s  
contributed to this story.  
the record with injury claims.  
they do not formally represent a  
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