A new era of enforcement puts even remodelers with longstanding safety programs and clean safety records at risk of receiving surprise jobsite visits – and subsequent fines – from the U.S. Occupational Safety & Health Administration (OSHA). This Q&A, a follow-up to “The Enforcer,” from the Feb. 2010 issue of REMODELING, explores the questions of a hypothetical remodeler.
Q: We’ve been in business for years and have never had an OSHA visit. Why would we get one now?
A: The odds are still slim, given that OSHA oversees the safety of some 7 million workplaces and inspected only 847 remodeling jobsites last year. But they’re growing.
Mathematically, the fact is that the number of construction sites has decreased dramatically, while the number of OSHA inspectors is climbing. For instance, U.S. building permits peaked at 2.155 million in 2005 and dropped to 905,000 in 2008. Meanwhile, in its FY 2010 budget, OSHA requested $564 million, a 10% increase over its 2009 funding.
Among other uses of those funds is the agency’s plan to hire 160 new enforcement staff. That staff will be busy, too. “It’s true that we’re stepping up our enforcement activity,” though not of residential remodeling specifically, says Michael Walterschied, OSHA area director for Baltimore/Washington. “We’ve been told that we need to be harder on employers, to ensure that they are complying with regulations.”
He corroborates what some remodelers have speculated, which is that the agency is shifting from being primarily a compliance operation – intended to help companies comply with the regulations – to an enforcement agency.
“They’ve budgeted more and they’re hiring more,” concurs Catherine Applegate of Applegate Associates, a safety training company. She notes that the agency’s “Local Emphasis Programs” allow it to focus resources on the most problematic local safety programs.
Q: Word is that OSHA sets inspection quotas. What were the goals in recent years, and what are the goals for 2010?
A: “OSHA's inspection goals from approximately 2002 through 2008 were consistent at 37,700 inspections per year,” says Richard De Angelis of the OSHA Office of Communications. “In 2009, with the additional personnel the agency received under ARRA [American Recovery and Reinvestment Act] funding, we increased the number of inspections by approximately 600.”
Q: Even so, I thought OSHA was only interested in commercial construction and big projects. Would they bother with a small remodeling project?
A: Typically only under two scenarios, Walterschied says: If somebody (a neighbor, employee, vindictive competitor, etc.) has filed a complaint, or if an inspector just happens to “see a violative condition,” such as workers not wearing hardhats when there is a danger of something falling from above, or there being inadequate fall protection.
“Compliance officers just drive around” looking for problems sometimes, Walterschied admits. “But they have to see something. If they don’t see anything obvious, then they have no probable cause.”
Q: If my project isn’t reported for a safety violation, or doesn’t have any obvious safety issues, how would OSHA know enough about it to stop by?
A: A third potential trigger for an OSHA visit is The Dodge Report, a database of current construction projects throughout the U.S. “Every major OSHA office has a Dodge list, and we use it as a tool to get to construction sites,” Walterschied says. Dodge subscribers can set the parameters of the jobs that interest them, but Walterschied says that he typically looks at those over $1 million only.
Q: We’ve done the OSHA 10-hour and 30-hour training. Doesn’t this cover us?
A: “I hear that a lot, that people assume they’re covered because they’ve done the OSHA training,” Applegate says. “But the OSHA training is just a piece of the puzzle. You need to have a strong and documented safety program as well, and OSHA wants to see that you’ve customized it as well.
“We always tell our clients, ‘Getting your ducks in a row is the right thing to do, and not just because OSHA might show up. Learn how to document things, what systems you need to have in place, what protections. That’s what OSHA wants to see: that you’re doing these things.”
Q: I’m a one-person shop. I only work by myself. Will OSHA cite me?
A: Unlikely. OSHA oversees employers, so you must have employees to be cited.
Q: Am I responsible for the subcontractors on my project?
A: Yes. Even if the electrician or plumber or mason neglected to enforce safety among his crews, “ultimately, it’s the GC’s responsibility,” Applegate says.
Q: What are OSHA’s most commonly cited construction violations?
A: Falls and fall hazards are the biggest problem on construction sites, Walterschied says, so inspectors will quickly spot “obvious fall hazards,” such as poorly built (or absent) scaffolds or guardrails. They’ll also look for “personal protection” such as hardhats and safety goggles.
However, once the inspector is on site, he or she will likely dig beyond the obvious. In the case of a remodeler whose high-end project in Washington, D.C., received an OSHA visit in November, the company was cited for inadequacies in hardhats, GFI protection on power cords, eye protection, and fall protection.
An OSHA fact sheet lists six “inspection priorities” in this order:
Imminent danger situations
Fatalities and catastrophes
Planned or programmed investigations
Q: What’s the average penalty OSHA levies against residential jobsite violations?
A: The average penalty for a serious violation is approximately $1000, according to De Angelis. “They’re rarely higher than $10,000 for remodeling,” says Walterschied, noting that he’s known of one contractor to receive (and survive) a fine of $120,000.
OSHA penalties haven’t been increased since 1990, a fact that may change in coming years (but requires an act of Congress). For a full list of base OSHA penalties, click here.
"OSHA has no control over this process," De Angelis says. "However, OSHA is currently reviewing its penalty calculation system to assess its deterrent effect."
Q: We’re a small business. If we get fined, can we get a break?
A: When it comes to OSHA, running a small business can be an advantage. Under certain circumstances, the agency will reduce proposed penalties by the following percentages for small companies:
Up to 60% for 25 employees or fewer
Up to 40% for 26 to 100 employees
Up to 20% for 101 to 250 employees
(Click here for more on OSHA’s small-business policies.)
Other factors that can reduce your penalty include having a clean safety record and a strong, documented safety program, demonstrating a good-faith effort to not make the same mistakes going forward, and agreeing to pay quickly.
Such a record helped the Washington, D.C., remodeling company in the case mentioned above get its penalty reduced from $6,500 to $1,000. “I met with the area director and showed his documentation of our safety program, our workers comp experience mod, receipts from purchases of hardhats, safety glasses, etc., and lastly, told him our industry was depressed and we couldn’t afford this,” says the company's co-owner.
He also brought his company’s safety director to the OSHA meeting. “Generally I tried to show the truth, which is we are trying to run a safe operation and are serious about it.”
For what it’s worth, most small businesses typically do ask for a break, Walterschied says. “Sometimes we’re talking a total penalty of $3,000, and they want major reductions. I guess it’s a sign of the times.”
Having a safety consultant at your disposal can also help to reduce fines. Applegate Associates has worked with OSHA to reduce its clients’ fines by hundreds of thousands of dollars over the years, according to Applegate.
Q: How can I learn more about safety training, and how much will it cost?
A: Besides Applegate Associates, there are dozens of safety training programs and consulting firms. The OSHA Safety Training Institute links to education centers around the country. Click here to learn about the OSHA-NAHB Alliance.
As for cost, “you can find a safety program for as little as $500, but you want to make sure it’s really customized and comes with back-up support,” Applegate says. Her company has hundreds of contractor clients, primarily in the Northeast, and fees typically range from $2,500 to $10,000, she says.