Double Secret Probation
The “Animal House” Guide to Understanding OSHA’s General Duty Clause
There are two personality types when it comes to OSHA compliance. On one hand, there's the type that says, we'll worry about that when it happens. The other type proactively does their best with the byzantine world of safety mandates. Since you’re reading this article, you must be one of the later.
We “second groupers” are trying to get our minds around the safety conundrum, but frankly, it's nearly impossible; maybe more impossible than you realize. Why so daunting? Three words… "General Duty Clause."
OSHA was established by the Occupational Safety and Health Act of 1970, and its jurisdiction covers all private-sector employers, regardless of size. Practically speaking, OSHA can be divided into two parts, A) Specific Regulations and B) the General Duty Clause. In a nutshell, the thousand pages of OSHA regs exist to provide guidance in fleshing out the General Duty Clause.
The General Duty Clause: Section 5(a)(1) of the OSHA Act requires:
“Each employer shall furnish to each of his employees, employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
In other words, the GDC is the “gap filler” used to address hazards that OSHA has not yet regulated.
The Movie Animal House, OSHA and You
As a quick aside, one of my favorite movies is the 70's classic "Animal House." At the risk of you missing the perfect metaphor for the General Duty Clause, take a look at this 2:16 clip from “Animal House” on YouTube:
So now you might be asking, how are OSHA and Double Secret Probation relevant to me? Let me give you an example.
My professional world is cranes, specifically EOT (electric overhead traveling cranes). Safety regs for EOT cranes are covered by OSHA 1910.179. Section 179 is a little under 7000 words and most crane owners make, the not unreasonable assumption, that if they comply with 179 they've done their job. This is a reasonable but dangerous assumption and here’s why.
Double Secret probation… Phase I
The General Industry 1910 OSHA specs includes the paragraph 1910.6, entitled “Incorporation by Reference.” With this paragraph, OSHA includes just about all the “national consensus standards" you can think of. The “national consensus standards” are those many standards that have been issued over the years by such groups as ANSI (American National Standards Institute), ASME (American Society of Mechanical Engineers), NFPA (National Fire Prevention Association), etc.
Actually, OSHA paragraph 1910.6 incorporates over 200 national consensus standards. This means that each one of these 200+ specifications have the full weight of law, just as if directly written into the OSHA pages!
Yes, I admit I have taken a bit of literary license claiming the 1910.6 is Double Secret Probation because OSHA has in fact said, in plain english, that all the referenced specs in 1910.6 paragraphs have been incorporated into OSHA.
Who has the time to peruse 1000 pages to find this obscure paragraph? Any busy professional will do a search for their relevant section and then dissect that section. They’ll not read all 1000 pages in search of a “gotcha paragraph, and it’s absurd to assume they will. What these lawmakers failed to realize is that we don’t have a congressional staff, paid by taxpayer funds, to do our reading for us. In other words, this obscure but crucial paragraph (1910.6) should, at the very least, be foot-noted at the bottom of every section like 1910.179.
Double Secret Probation… Phase II
(the nuclear phase)
The nuclear phase of Double Secret Probation is GDC or the General Duty Clause. This is the paragraph that basically says that everything not specifically included in the other 1000 pages is covered under the General Duty Clause. In other words, a crane owner can't feel safe having diligently met all the requirements of 1910.179, they are still "as naked as a J-bird" from the perspective of the GDC.
EXACTLY WHAT IS THE GENERAL DUTY CLAUSE?
The General Duty Clause, Section 5(a)(1) of the 1970 law, requires employers to maintain a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. Pretty simple statement isn’t it? What ethical person could argue with the intent of this simple sentence?
The law itself doesn't actually define any hazards or set any specific safety standards. Instead, it gives OSHA, acting on behalf of the U.S. Secretary of Labor, the authority to formulate national standards and enter them into Federal Regulations.
Catch 22 and Another Hollywood Business Lesson
At the risk of mixing my movie metaphors, the scary part of the GDC is it's "Catch 22'ness.” In the movie Catch 22, a soldier could get out of combat if they could prove they were insane, but the mere act of wanting to get out of combat was certification of normalcy and therefore the soldier was promptly sent back into combat.
So how is GDC a Catch 22? A good example is that OSHA doesn't require EOT crane conduct bars to be insulator covered. In other words, old fashion bare copper wire conductors carrying 480 volts is legit.
Now here's the rub. What happens when a worker, is above floor level (changing light bulbs, fixing a sprinkler line, etc.) and is electrocuted by coming in contact with the exposed bare wire?
By definition, isn't every fatality a person that was exposed to “a danger?” If there wasn't a danger, how did they die, and if there was a danger, did the employer fail to fulfill their GDC duty? Like I said earlier, although well meaning in it's intent, GDC is the "Catch 22" of employer liability.
It’s Bad, But Not Quite That Bad
Before you jump off a tall building, let me talk you off the ledge. There are precautions you can take to guard yourself from both Double Secret Probation and Catch 22.
Although not included in the OSHA 1910 code, the courts have decided that there are four specific conditions that must be present to be considered guilty of a GDC infraction. ALL four factors must be present.
THE FOUR PREREQUISITES OF A GDC INFRACTION
1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
2. The hazard was recognized.
3. The hazard was causing or was likely to cause death or serious physical harm.
4. There was a feasible and useful method to correct the hazard.
Remember, all four factors must be present for a valid GDC infraction. These four factors are usually found by forensic investigators in your paper trail.
Know Your Paper Trail
In this computer age, it seems like our paper trail is more ephemeral than ever, but in reality, it's just the opposite. Even though it’s painfully easy to delete files and no matter how carefully you follow a naming convention, you can never find that one document you created last summer, it's out there. It’s either somewhere on your computer, the company server, a backup system, in somebody else's email box or in “the Cloud,” but rest assured, it’s out there somewhere. A forensic computer expert can find just about anything, even files you specifically took pains to delete from your computer.
Please be aware, this is not a “nod and a wink” to purging your digital world of potentially harmful documents. This is not a moral judgement, but rather a fact. In todays digital world, it just can’t be done!
So what are these paper trail sources?
1. Maintenance records of previous repairs
2. Safety audits
3. Internal emails
4. Internal text messages
5. Company work rules
6. SOP docs
7. Collective bargaining agreements
8. Prior incident records
9. Past near misses
10. Injury reports
11. Workmen's comp claims
12. Insurance claims
Other sources include;
1. Industry recognition of related issues
2. Insurance industry recognition of related issues
3. Manufacturer’s equipment owners manuals
4. National consensus standards
Bottom-line, is that the “Three Monkey Defense” of hear no evil, see no evil and speak no evil "ain't gonna cut it." To claim you weren't aware of the hazard in you own building is going to leave a gap in your legal protection that both OSHA and the Plaintiff's lawyer will be able to drive a semi-truck through.
Further Legal Exposure of a GDC Violation
We're not talking nickels and dimes here. A GDC violation has a $7,000 price tag and if the violation is deemed willful or a repeat violation, the penalty goes from $7,000 to $70,000! But $70k is chump change compared to the real danger.
The real danger of incurring a GDC violation is that it can be construed as an admission of negligence for both worker's comp and personal injury/wrongful death tort litigation. Some states even allow exception to “Workers Comp exclusivity” if gross (willful) negligence is involved.
GDC Affirmative Defenses
Because of the legal exposure of a GDC violation, these violations can’t be taken sitting down. So what’s the best defense? The best defense is a pre-violation offensive move. You must prepare for the violation before the accident. Pursue a “Prudent Man” policy. A Prudent Man policy means taking the necessary steps to make sure at least one or more of the required four prerequisites cannot be established.
In my view, items two and three are the most important factors.
Item #2: The hazard was recognized
Item #3: The hazard was causing or was likely to cause death or serious physical harm
To establish a case for either or both of these issues, a hazard must be identified, accommodated, properly documented and then periodically audited for effectiveness and continued compliance.
At it's core, OSHA is a basically like a pilots “pre-flight inspection program” with an established paper trail to document the inspection and the remediation. Inspections can be divided into three groups;
1. In-House Inspections
2. Third-Party, Equipment Manufacturer’s Inspection
3. Certified, Third-Party Independent Inspectors
1. In-House Inspections
In all but the largest companies (with dedicated inspection crews), in-house inspection is usually a hit or miss affair. It's usually performed by the maintenance guys at the bottom of the seniority list (the experienced guys are busy fixing something) and the position involves little "book" training of the requirements of the applicable codes. Truth be known, it's usually a case of "pencil wiping" a checklist.
The most damning aspect of in-house inspectors is not periodically getting a new pair of experienced eyes to help discover the potential problems. These in-house inspectors see these same problems day after day, much like the broken switch plate in your kitchen at home. After a long enough period, you no longer see the broken plate and it never get’s replaced until you sell the house.
2. Third-Party, Equipment Manufacturer’s Inspection
This represent a big step forward by hiring a firm that employees professional inspectors. The critical problem here is that the firm is a division of an equipment builder.
Beware of companies that offer "bait and switch" inspections for absurdly low prices. The gambit is to "get in the door" charging next to nothing for the inspections on the front end, only to make up for the loss by charging excessive amounts for un-needed repairs or better yet, a replacement crane.
Getting the big picture of the vendors business model is always a good place to start your evaluation. Like always, beware of deals that are "too good to be true," because they probably are.
3. Certified, Third-Party Independent Inspectors
A worthy third-party inspection firm needs to encompass five characteristics.
A) Documented experience in the field.
B) A standardized documentation system/paper trail.
C) Documentation showing continued pursuit of industry education.
D) Proof of Errors and Omissions Insurance.
E) A reasonable pricing structure that can sustain a professional/competent consultant.
The choosing of a third-party, professional inspection company is the center-piece of your GDC Affirmative Defense. Engaging a third rate inspection firm for a price that's “too good to be true” is a dead give-away on how you value safety. The hiring of an unreasonably cheap inspection firm can result in a case being made that your safety program is just "window dressing."
The hiring of a quality Certified, Third-Party Independent Inspectors is the centerpiece of your “Prudent Man” defense. Engaging a professional inspection firm with impeccable credentials (copies of which must me kept on file) is all the court can expect a “Prudent Man" to do and will just crush the soul of the Plaintiff's lawyer (assuming they have a soul).
An Affordable and Practical, CYA Inspection Program
In this era of getting clicks with alarmist headline, I not only want to warn you of a threat, but to also offer a blueprint for a program that will both maximize worker safety while providing a good dose of CYA, all for an affordable price.
An ideal program that maximizes effectiveness while minimizing costs is a combination using both In-House inspections with Certified, Third-Party Independent Inspectors. The program should look something like this;
1. Annual Inspections Hire well documented, Certified, Third-Party Independent Inspectors for the annual inspections. Use the inspector’s documentation forms if at all possible because they’ve already fought the internal tug of war between being complete while at the same time not pricing themselves out of the market. Besides, they’re the experts and they know better than you the required paper trail.
2. Interim Inspections In the case of EOT cranes, in addition to the annual inspections, OSHA requires daily and what they term "periodic" inspections (may be weekly, monthly or quarterly), based on equipment duty cycle. These interim inspection can be performed by In-House Inspectors. Use the Inspection Firm as a consultant for determining the frequency required, the establishment of a paper trail and the training of the In-House inspection staff. This will be a one time cost and again, in the face of a possible legal issue, you can say you deferred to the guidelines of “an expert.” for both training and documentations.
3. Interim Inspection Audits At the time of the annual inspections, have the independent inspection company perform a cursory audit of the paperwork performed by the In-House inspection staff. Use this time as learning experience for the In-House crew, both on their paperworks as well as a Q&A session on their inspection technique. This whole process should be accomplished in an hour or so and done annually at the time of the annual inspection.
The reality of doing business in the first quarter of the 21st Century is that we live in a litigious world, which is news to nobody. The real news is that a GDC violation can very easily devolve into a disastrous domino effect and the GDC infraction may be the least costly problem of the event.
More dangerous than OSHA are the other members of this crew of hanging judges. This group can include a plaintiff’s lawyer, workmen's comp multipliers, health insurance costs and cancellation of insurance carriers coverage.
Never has it been more important to boldly set claim to an unquestioned position as a “Prudent Man” when it comes to safety, and the best way to claim this space is the hiring of a professional Certified Inspector.
The pleasant dividend of this pursuit of a “Prudent Man” policy is that it cannot help but to produce a safer workplace and therefore lower Workman’s Comp costs, lower health care costs, lower lost time accidents and drastically lower expenditures for legal fees.
If there ever was a doubt in your mind that safety pays, it's time to become a true believer.