OSHA released on Friday, Jan 9, a new Field Operations Manual (FOM) for OSHA compliance officers and their supervisors who work in OSHA’s area and regional offices. The 322-page manual is the procedural how-to guide for scheduling and conducting inspections, documenting violations of workplace safety and health standards, and proposing penalties. In the news release announcing the new manual for inspectors, the acting asst. secretary said it:
“…gives compliance officers important guidance in implementing OSHA’s balanced approach to workplace safety and health: enforcement, education and training, and cooperative programs.”
Looking just at the FOM’s Table of Contents, I see how the G.W. Bush Administration’s “balanced approach” and “compliance assistance” philosophy are now enshrined in the document. For example, under Chapter 2 Program Planning the section on “Cooperative Programs” comes before “Enforcement Program Scheduling,” and before “Hazard Evaluation and Inspection Scheduling,” and before “Programmed Inspections.” In contrast, the old FIRM had 4 main chapters:
- Pre-inspection procedures
- Inspection procedures
- Inspection documentation
- Post-inspection procedures
In the big scheme of things, I don’t have a problem with some mix of cooperative assistance to employers, but I don’t think they should take precedent over OSHA’s fundamental responsibilities of hazard investigations and inspections—in other words: ENFORCEMENT. [When some idiot nearly ran me down with his SUV while I was legally crossing the street, I wasn’t interested in the cops providing “compliance assistance” to him—-the idiot deserved a traffic ticket!] When an agency gives penalty reductions and other prizes for merely complying with the law, the Act loses its meaning. Good faith bonuses and the like should be reserved for those employers who go above and beyond the legal requirements.
This new operations manual replaces the Field Inspection Reference Manual (FIRM) which was issued in 1994, and as I recall, with some fanfare because it was billed as part of VP Gore’s “Reinventing OSHA” initiative. In the intervening years, the FIRM has been updated with OSHA Instruction memorandums that informed the field staff of changes in policies and procedures. Mr. Henshaw’s and Mr. Foulke’s penchant for partnerships and alliances were incorporated in OSHA operation through these Instructional memorandums, but now they are engrossed permanently into the FOM. (Of course, like the 14-year old FIRM before it, the FOM can be re-issued, or individual policies re-interpreted or revoked.)
Today, I took a little time searching the new FOM for references to family-member victims of workplace fatalities or catastrophes. In the 322-manual, I found 7 unique items representing OSHA policies related to family members. They include:
- In the case of a fatality, “the family of the victim shall be provided with a copy of the citations without charge or the need to make a written request. [The policy does not state explicitly that the family will be mailed automatically a copy of the citation, as it does with respect to an employee representative.] Moreover, the policy notes that a copy of citations mailed to an employee representative are not to be sent until OSHA receives a certified mail return receipt card from the employer, meaning that the employer will ALWAYS receive the citations before any family member or employee representative.” (page 5-13)
- In chapter 11 covering fatality and catastrophe investigations, “Family members of employees involved in fatal or catastrophic occupational accidents or illnesses shall be contacted early in the investigation and given the opportunity to discuss the circumstances of the accident or illness. The standard information letter will normally be sent to the individual(s) listed as the emergency contact on the victim’s employment record (if available) and/or the otherwise determined next of kin within 5 working days of determining the victim’s identity and verifying the proper addressed where communications should be sent. Nte: In some circumstances, it may not be appropriate to follow these exact procedures (i.e., in the case of a small business, the owner or supervisor may be a relative of the victim.) Modify the form letter to take any special circumstances into account or do not send the letter, as appropriate.” (page 11-12)
- “Interviewing the Family: When taking a statement from families of the victim(s), explain that the interview will be handled following the same procedures as those in effect for witness interviews. Sensitivity and professionalism are required during these interviews. Carefully evaluate the information received and attempt to corroborate it during the investigation. Maintain follow-up contact with key family members or other contact persons so that these parties can be kept up-to-date on the status of the investigation. Provide family member or their legal representatives with a copy of all citations, subsequent settlement agreements or Review Commission decisions as these are issued, or as soon thereafter as possible. However, such information will only be provided to family members after it has been provided to the employer. The releasable portions of the case fill will not be made available to family members until after the contest period has passed and no contest has been filed. If a contest is filed, the case file will not be made available until after the litigation is completed. Additionally, if a criminal referral is under consideration or has been made, the case file may not be released to the family. Notify the family of these policies and inform them that this is necessary so that any potential litigation is not compromised.” (page 11-13)
- With respect to employee complaints and referrals a “representative of employees” includes “any person acting in a bona fide representative capacity, including, but not limited to, members of the clergy, social workers, spouses and other family members, and government officials or nonprofit groups acting upon specific complaints and injuries from individuals who are employees.” (page 9-3)
For those of you interested in enhancing the rights of family member victims, I encourage you to read these sections, and comment below with your feedback.