An article written by Employment Law Partner Ryan J. Murphy, Esq. discusses the need for employers to develop a deliberate safety policy and program to protect its workers and prevent injuries.
A podcast discussing Safety Policies and Programs features Employment Law Partners Dan Lieberman and Ryan Murphy.
Safe workplaces are not a given; they must be built! The development of a deliberate safety policy and program is the best tool for an employer to protect its workers and prevent injuries.
The failure to develop a safety policy and implement a safety program carries great risk for both employees and the employer. Employees face a greater likelihood of injury, or even possible death. The employer faces increased exposure, including both direct liabilities, such as OSHA citations and Workers’ Compensation expenses, and also hidden costs, including lost production time, the recruitment and training of replacement workers, and damage to equipment and product inventory. Effective safety policies and programs do not just mitigate these risks; they also produce many positive effects for the workplace. These may include higher efficiency, increased morale and recruitment, and a greater reputation with customers and suppliers.
This article will discuss the legal considerations, goals, and components of effective safety policies and programs.
A safety program must consider both the laws relative to workplace safety and workplace injuries. Workplace safety is governed by the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq. The Occupational Safety and Health Administration (“OSHA”) administers the Act through issuing regulations and safety standards, and by inspecting workplaces and issuing citations to employers in violation of its rules. Although OSHA applies in every state, many states also maintain their own OSHA-approved state safety programs.
The OSH Act applies to most businesses, organizations (including non-profits), and individuals who engage in interstate commerce and have employees. 209 U.S.C. § 652 (4) & (5). It imposes a duty upon covered employers to (1) comply with the general duty clause, and (2) comply with the specific safety standards applicable to their industry. The general duty clause requires an employer to keep its workplace free of any recognized hazards that are likely to cause death or serious physical harm to its employees. 29 U.S.C. § 654(a)(1). The general duty clause is a catch-all, applying to all industries, even where there is no specific industry standards in place. The second obligation on employers is to comply with specific safety standards issued by OSHA. These have been issued in four general areas: (1) general industry; (2) construction; (3) maritime and longshoring; and (4) agriculture. These safety standards include both broad standards regarding things such as employee training and avoidance of unsafe conditions, as well as narrowly-defined standards relative to specific pieces of machinery and other equipment.
Workplace injuries are primarily addressed through state workers’ compensation laws and associated regulations. These are state-specific and employers should be aware of their obligations under their specific jurisdiction.
To ensure compliance with its obligations, employers should develop a specific safety policy and program. At the outset, these should be (1) compliant with the requirements of the general duty clause; (2) tailored to address any and all specific safety standards applicable to the employer (including relevant state laws); and (3) designed to prevent and address workplace injuries. However, the goal is not just to have a policy and program, but rather to have an effective policy and program. Achieving the latter requires a focus on pro-active action, accountability, and continuous improvement.
A safety policy should contain the description and structure of the employer’s safety program. It should be created in conjunction with the underlying safety program itself. The policy should establish a commitment to worker safety and accident prevention, as well as communicate both the program’s specific goals and the methods for achieving them. It should also provide the employer’s expectations of the various components of the program and the responsibilities of the different classes of employees. Lastly, it should codify the measurements or metrics that will be used to evaluate the effectiveness of the greater program.
The safety program is the foundational protocol upon which the safety policy is based. OSHA recommends that an effective program should address at least six core components: (1) Management Commitment; (2) Worker Participation; (3) Hazard Identification and Assessment; (4) Injury/Accident Prevention; (5) Education and Training; and (6) Program Evaluation and Revisions.
In the first component, management must begin by communicating a commitment to safety. This commitment should be evidenced by the written safety policy, a summary of realistic goals for the safety program, and a detailed plan as to how those goals should be achieved. Specific responsibilities should be assigned to specific employees. A commitment and plan alone, however, is not enough. Management must then demonstrate follow-through on that commitment with action. It should start by providing the necessary resources to allow the program to succeed. These resources include not only the money needed for the necessary training and equipment, but also setting aside the time necessary for employees to complete their assigned tasks, and for full participation in the program by both employees and management. It also includes leading by example and promoting a safety-first culture to both supervisors and other employees. Management should strive to comply with the established protocol under the program constantly, consistently, and objectively.
Second, a safety program will struggle to succeed if there is not complete “buy-in” and honest participation of employees. Front-line workers are often the individuals with the most direct knowledge and exposure to potential safety hazards. Under the second component, a safety program must seek to achieve worker participation. To do so, it should encourage workers to report potential safety concerns and possible hazards. It should also establish a protocol to ensure that the information collected will not be used for other purposes, and to protect employees from possible reprisal. The program should also seek to make workers a direct component of the program by utilizing their input in its design and revisions, freely providing them information about the program and incidents, and removing barriers for their participation. A good example is to build safety training and policy review into their work schedule. Employers should document all efforts to develop and promote their policy and a safe work environment.
The third component of an effective program is the process by which hazards will be both identified and assessed. This portion of the program should include provisions for the acquisition of up-to-date information and training materials for the given industry and potential hazards in general, as well as the specific hazards and incidents at the employer’s facilities. There should be a procedure for regular workplace inspections and checklists to methodically assess potential problems. The policy should also provide a specific procedure and detail responsibilities associated with the reporting and investigation of both workplace accidents/injuries, as well as near misses. There should be a documented method for the assessment of identified hazards and addressing their impact, especially those deemed a high priority.
The fourth component of the program involves the procedures and methods to be used to eliminate or mitigate the danger posed by identified hazards. In designing this, employers should make use of the NIOSH Hierarchy of Safety Controls: Elimination, Substitution, Engineering Controls, Administrative Controls, and Personal Protective Equipment. It should also establish a plan as to how the different types of controls will be applied to specific hazards (with an understanding that often a combination of multiple types of controls may be the best option). It should also assign specific responsibility for the implementation of specific controls to individual persons, and create an evaluation system to ensure that the controls operate as intended in practice. This latter part should include regular inspections and preventative maintenance.
The fifth component is focused on providing training to employees both on the safety program itself, and also on hazard identification and controls. This training should explain the goals and structure of the program, as well as the different responsibilities of individual employees. It should encourage reporting of hazards and how the information provided will be handled by management. Workers should be trained in the identification of possible hazards, the procedures to report them, and the safe use of any controls in place to mitigate them. All training should be documented by the employer. Where necessary, compliance with the training should be enforced under the employer’s discipline policy.
Finally, the program should include a process for internal evaluation to ensure that it is meeting the goals originally established by management. The metrics, such as the number of work injuries per quarter, the average cost per Workers’ Compensation claim, or loss of production hours over a defined period, must be identified at the program’s inception and must be evaluated and revised as necessary to allow for continued improvement. Additionally, the specific metrics themselves should be re-evaluated on a regular basis to make certain they best promote a safe workplace for the employer’s specific business and industry. This portion of the program should be supported by feedback from all interested parties including workers, supervisors and, possibly, customers/suppliers to provide an appropriate cross reference of address and review.
The best way for an employer to protect its employees is to design and implement an effective safety policy and program. While it requires deliberate preparation and buy-in from multiple parties, once in place it will prove to be well worth the time and effort, and will establish an appropriate standard for review while building trust with employees, customers, and business partners/vendors. Employers should subscribe to the concept that “one injury is one too many!”
If you have any questions or need assistance in updating your Employee Handbook, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638 or by email at EmploymentLaw@c-wlaw.com.
The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys. No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.