February 23rd, 2023 by Dakota Software Staff
Maintaining compliance with OSHA requirements can be challenging for any organization, but let’s face it, there are some regulatory areas that are more confusing than others. As the saying goes, “the devil is in the details” and a few of OSHA’s safety requirements, and how they apply to your organization, contain details that can be difficult to interpret, and therefore, to comply with. In this article, we will discuss three of the more commonly misunderstood OSHA regulations and how they can cause potential issues for your organization.
While determining which OSHA regulations apply to your organization is crucial to avoiding violations, it may not be as straightforward as it seems. For example, the General Industry standard (29 CFR 1910) applies to most worksites, while the Construction Industry standard (29 CFR 1926) applies to construction and addresses work-related risks specific to the industry.
Some individuals may look at the name of each standard and assume that if they run a construction company, they only need to adhere to the 1926 Construction Industry Standard. However, determining which standard applies isn't based on the type of workplace, but on the kind of work performed.
For example, if your company runs a manufacturing facility with a maintenance department, most of their work likely falls under the General Industry standard, but not everything. In fact, the line between construction and general industry can get blurry regarding maintenance.
OSHA 1910.12(b) defines construction work as "work for construction, alteration, and/or repair, including painting and decorating." In addition, an OSHA letter of interpretation defines maintenance as "making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion" and "keeping equipment working in its existing state, i.e., preventing its failure or decline."
Even with these definitions, distinguishing between construction and maintenance is sometimes tricky, and employers must do it on a case-by-case basis. Here are a few questions to ask when making that determination:
How big and complex is the task? The simpler and quicker it is, the more likely it is to be considered maintenance. In contrast, the bigger and more complicated the job may indicate construction work. For example, are you replacing a few cracked tiles in a lobby or reflooring the entire building?
Does the task improve on something or preserve its current condition? In general, improvements are an indication of construction, while preservation is maintenance. For example, are you replacing a worn-out part on the facility's air handling unit, or are you replacing the entire unit with a newer and bigger one?
Is the task routine and performed on a regular schedule? If so, after considering the first two questions, that is generally an indication of maintenance work. For example, are you repainting designated walkways on a shop floor twice a year or painting an entire building to make it more visually appealing?
When dealing with personal information (29 CFR 1904.29), you must balance providing the stakeholders with the information they need and protecting the personal information of the individual involved. Due to the access and availability of OSHA injury data like form 300, employers must follow best practices to protect the privacy of injured workers.
Some workers may have experienced severe injuries and are uncomfortable sharing the details or letting people know about their illnesses or injuries. OSHA recordkeeping requirements address these concerns and provide a framework for companies to follow.
OSHA says that in certain situations, employers can maintain the privacy of the injured or ill employee by entering the words "privacy case" in the space generally used for the employee's name. However, some believe that's all where the employer's responsibility ends, but further steps are needed.
Determining what is and isn't a privacy case isn't up to the employer. OSHA 1904.29(b)(7) defines what injuries and illnesses are treated as privacy cases and doesn't allow anything else.
Here's a list of what OSHA defines as a privacy concern case:
An injury or illness to an intimate body part or the reproductive system
An injury or illness resulting from a sexual assault
Mental illnesses
HIV infection, hepatitis, or tuberculosis
Needlestick injuries and cuts from sharp objects contaminated with another person's blood or other potentially infectious material
Other illnesses may be treated as privacy concern cases if the employee independently and voluntarily requests that their name not be entered on the log
If the employer has privacy concern cases, they must keep those cases that include complete employee information confidential. In addition, in some instances, not including the name will not be enough to prevent employees from determining who the injured party is. In this situation, recordkeeping requirements allow employers to withhold additional information that could identify the injured party.
Some companies think that by using temporary or contract workers, they can transfer the responsibilities of EHS compliance onto those companies, but that's not necessarily true. According to OSHA (29 CFR 1904.31), temporary staffing agencies and host employers are jointly responsible for the safety and health of temporary workers and must comply with applicable OSHA requirements.
In addition, this joint responsibility means that the host employer may need to record temporary worker injuries on their OSHA 300 log. OSHA recordkeeping requirements dictate that recording work-related accidents fall on the company that directs the employees' work. Therefore, who records a work injury to a temp or contract worker comes down to supervision.
According to an OSHA bulletin, "Day-to-day supervision occurs when in addition to specifying the output, product, or result to be accomplished by the person's work, the employer supervises the details, means, methods, and processes by which the work is to be accomplished."
In most cases, the host employer is the party providing supervision. While a staffing agency or contractor may have a representative onsite, that doesn't mean the representative is supervising in the eyes of OSHA. Therefore, host employers are responsible for recording injuries and illnesses as long as they maintain day-to-day supervision.
Regulatory EHS compliance is often complicated and it's easy to make mistakes when it comes to how the different regulations apply to your organization. Things only get more complex as your operations evolve and the regulatory requirements change. Organizations that don't stay on top of changes are likely to run into trouble that could affect the well-being of their employees and the reputation, profitability, and longevity of their business.
Thankfully EHS compliance management systems, such as the ProActivity Suite from Dakota Software, can streamline the process. Our compliance management products are fueled by an integrated regulatory database that clarifies complex subject matter and helps identify exactly what requirements apply to your locations. This library of plain-language overviews, audit protocols, and compliance tasks, is maintained by our in-house regulatory experts, prompting review by your EHS leaders and ensuring compliance plans are accurate and up-to-date. Action items mapped to your regulatory registers provide a consistent and centralized method for managing tasks so everyone is aware of what’s been done, what is coming due, and who is responsible.
Need a hand? Maintaining EHS compliance is sometimes challenging, but the right tools can help understand your obligations and keep you on track. Sign up for Dakota Software’s EHS Regulatory Alerts to stay on top of the latest EHS regulatory changes.
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