Fact vs. fiction: OSHA compliance assistance and on-site consultation

Whenever Deputy Assistant Secretary of Labor for Occupational Safety and Health Jordan Barab attends conferences to discuss the agency’s compliance assistance efforts and On-Site Consultation Program, he asks the audience the same question: How many people have never heard of OSHA’s consultation program?

“I always get way too many hands up,” Barab said. “We’re trying to spread the word as much as possible.”

In an exclusive interview with Safety+Health, Barab offers a glimpse into OSHA’s consultation program, as well as the agency’s dual reliance on enforcement and compliance assistance. He elaborates on myths and misconceptions that OSHA tries to combat, reiterating a point he made during a February hearing of the Senate Homeland Security and Governmental Affairs Committee.

Enforcement is an important tool – but not the lone method – for OSHA to protect workers, Barab said. Here, he discusses OSHA’s efforts to promote safety without penalties.

Safety+Health: What are some of the myths OSHA tries to combat regarding compliance assistance and its On-Site Consultation Program?

Jordan Barab: Let me start a little bit broader with compliance assistance in general, and then we can talk about the consultation program. There is an impression, especially among some of the employer associations, that this administration has somehow turned OSHA around and instead of having a balanced program, we’ve gone totally into enforcement and we don’t do any compliance assistance anymore – which is totally a myth. We have what we still consider to be a very balanced program. For those employers who want to do the right thing and need more information, we have a very active compliance assistance program to make sure that they have that information.

We do all kinds of visits and presentations. We have over 200 million visitors to OSHA’s website every year. We have a 1-800 number. We have compliance assistance specialists in most of our regional offices. Our program is not just employer-oriented; we also try to get the word out to workers, especially vulnerable workers who don’t have access to the information.

The other point in terms of our overall compliance assistance program is that we’d love to be doing more. We used to have a compliance assistance specialist in every one of our 80-something area offices. We can’t afford to do that anymore. We’ve had some pretty serious budget cuts in the compliance assistance area, which is kind of an irony because we on one hand are criticized by Congress sometimes for not doing enough compliance assistance, and yet they have cut our budget. … Our budget overall for federal compliance assistance was about $76.4 million in 2012, and it’s only $68.4 million today. Consultation is right about the same. So we haven’t seen any growth in our consultation program despite the fact that our needs are at least as great, if not greater, in that area.

S+H: Why is it important to fund these programs?

Barab: People need the compliance assistance. Businesses want it, especially when we issue new standards. Workers need it. If we’re not doing it, the demand doesn’t go down just because we don’t have people to do it. Either we have to say ‘no’ when we get requests and we don’t have the staff, or we have to use our enforcement personnel, and then we’re doing less enforcement, which also doesn’t make sense. We’d rather get back up to adequate budget levels, and the president has asked for increases in the compliance assistance line items every year, but we haven’t really seen those materialize.

Barab in 2015, speaking during a keynote session at the National Conference on Worker Safety and Health in Baltimore.

S+H: How do you weigh compliance assistance versus enforcement? Do you need to focus on both?

Barab: Yes. They’re not unrelated, either. Not only the more enforcement we do but the more that we publicize the enforcement, the more that increases the demand for compliance assistance. There are a lot of companies out there that will only ask for compliance assistance if they’re a little bit worried that we might show up in an enforcement mode.

There are some employers who will, whatever we do, not need an enforcement program. They want to do the right thing, they are committed to doing the right thing, and they will get whatever assistance they want to do the right thing. But there are some that think, ‘Well, you know, I’ve got other things to spend my money on if I’m not worried at all that OSHA is ever going to come out here and do an inspection and cite me’ – relying more on luck, really, than on health and safety.

The other area that I talked about at the hearing is our consultation program, which I often call our best-kept secret. [OSHA administrator] David Michaels – I think it was back when Congress used to have appropriations hearings not just for the cabinet agencies, but also for the departments – it was his first appropriations hearing in the House, and the chairman asked him, ‘We’ve got all these small businesses out there, they can’t afford to hire people to do health and safety – wouldn’t it be a good idea for OSHA to have some kind of program where they provide free services to small businesses?’ David was able to say, ‘Well, congressman, good question – and we actually have that exact thing.’

It’s not just politicians … a lot of companies don’t know about that program. We do whatever we can to make sure that they know the program exists, that it exists in every state, that OSHA funds it, and that it’s not related to enforcement.

S+H: Is it fair to say that some employers may believe, ‘If we bring OSHA here, we might be subject to citations or marked for future inspections.’

Barab: We hear that. I think sometimes I hear it more from some of the associations that don’t like us very much than I hear from specific employers. We try to make sure that people understand what the truth is, but there is that myth. We do everything we can to make sure that companies understand that there is a separation between the consultation program and enforcement. The consultation programs do not cite; they do not fine. The only exception to that is if they make recommendations and there are serious hazards, and the employer refuses to correct those. Then, they can be referred to the enforcement agency. But that very rarely happens.

The other question we get sometimes is, ‘Well, we don’t want to have a consultant come out because what if they recommend all kinds of really expensive stuff?’ A lot of the stuff that the consultation program recommends is either no cost or very low cost. Common things are blocked exit doors, locked exit doors, blocked aisles and passageways, improper storage of materials. These are all things that can cause fatalities or injuries but can be fixed without cost. And then there are other things like putting machine guards on, making sure people have fall protection, covering up open floors, labeling electrical panels – things that may have a small cost but are important and can be done fairly easily. So that belief that they’re suddenly going to be socked with huge costs if they call consultation is also a myth.

S+H: What do you want small businesses to know about the consultation program?

Barab: We fully understand that small businesses may not be able to hire a full-time health and safety person, and in fact they may not even be able to hire a consultant. They just can’t afford it. And yet they’re still responsible for the health and safety of their employees. They understand that, and they legitimately need some assistance, and we’re appropriated almost $60 million a year to do that exact thing. We have a 90/10 match. We provide 90 percent of the funding for the states to fund these programs, and they are there to help small employers come into compliance with health and safety requirements.

We’re also asked why, for small businesses, we don’t have some kind of exemption for first-instance violations. If we go in and we cite an employer, and they say, ‘Oh we didn’t know about this,’ why don’t we just let them go? Basically, our response is that we have that, and it’s called our consultation program. Any small employer can essentially get a free visit from a consultant who can point out all the health and safety issues that we might find in a later inspection, and give them an opportunity to correct those.

S+H: The consultation program focuses on small-business worksites. Does OSHA have any plans down the road to expand the program to midsize or larger employers?

Barab: If we had an unlimited amount of funding, yeah, sure. But we don’t, and we never will. So we really need to prioritize those that need it most. I think it’s fairly clear, and it was Congress’s intent in funding this program, that we focus on small businesses.

S+H: Do you hear success stories from small businesses that have taken advantage of the program?

Barab: Absolutely. They like the program. We have proof that it actually helps workers. We keep track of how many hazards are identified and how many workers are removed from hazards, and in FY 2015 we had 140,000 total hazards that we identified through these consultations and 3.5 million workers were removed from hazards. Not only do we see a lot of appreciation from employers, but we see real results.

S+H: If an employer wants to get involved, what should they know?

Barab: Go to our website. There is a tab on our home page that says, ‘For Employers,’ and there’s another tab on the drop-down menu for small businesses. There’s another one for our consultation program. So it’s fairly easy to find our consultation program and request a consultation.

S+H: How fast is the turnaround for organizations that submit a request?

Barab: We try to get there within 30 days. It will differ possibly from state to state depending on what their staffing and budget situation is, but that’s what we try to do.

S+H: So if someone were to ask whether OSHA’s primary goal is compliance assistance or enforcement, what would you say?

Barab: Our overall goal is to make the workplace safe for employees and to ensure that employers understand that it’s their obligation to make the workplace safe. From there, it just depends on what tool we have in our arsenal that seems to be appropriate for that specific situation.