An organisation will be guilty of the new offence if the way in which its activities are managed or organised causes a death and amounts to a gross breach of a duty of care to the deceased.
Penalties
An organisation guilty of the offence will be liable to an unlimited fine. The Act also provides for courts to impose a publicity order, requiring the organisation to publicise details of its conviction and fine. This will be commenced at a later date when sentencing guidelines are available (expected in autumn 2008). Courts may also require an organisation to take steps to address the failures behind the death (a remedial order).
Who is covered by the new offence?
The offence applies to all companies and other corporate bodies, operating in the UK, in the private, public and third sectors. It also applies to partnerships (and to trade unions and employers’ associations) if they are an employer, as well as to Government departments and police forces.
Can directors, senior managers or other individuals be prosecuted for the offence?
No. The offence is aimed at cases where management failures lie across an organisation and it is the organisation itself that will face prosecution.
However, individuals can already be prosecuted for gross negligence manslaughter/culpable homicide and for health and safety offences. The Act does not change this and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so”
Frustration had mounted in the UK with the lack of prosecutions of company leaders relating to workplace fatalities. This law tries to hold an organization, not just one person, accountable. I think the penalties are what makes this law intriguing, especially the publicity order. A court can order a company to publicize their prosecution in a manor determined by the court. Would you choose to still buy a product from a company who is publicizing they killed someone in their workplace due to their gross breach of a duty of care? I know I would be looking at a competitor who provides a safe and healthful workplace.
More Information if you are interested.
Hope you enjoyed this 3 Part Series discussing OSHA and legislation.
Let me reiterate my belief – In my opinion and through my experience companies with safety as a value do not have a problem with a strong OSHA. In fact companies with safety as a value partner with OSHA, share best practices, mentor other facilities, and join OSHA in the mission to assure safe and healthful working conditions for working men and women.
I left off in Part 1 with the question, so how do we have a strong OSHA?
Before we discuss this further, I want to make one thing clear. In my opinion and through my experience, companies with safety as a value do not have a problem with a strong OSHA. In fact companies with safety as a value partner with OSHA, share best practices, mentor other facilities, and join OSHA in the mission to assure safe and healthful working conditions for working men and women.
Now on to how do we have a strong OSHA. With the change of administration in the White House, OSHA leadership changes, political initiatives change; the question is will the results remain the same?
Meet the new Occupational Safety and Health Administration (OSHA) Leadership
The two highlights of leadership change within OSHA from the new administration have been the additions of Dr. David Michaels (Assistant Secretary of Labor for Occupational Safety and Health) and Jordan Barab (Deputy Assistant Secretary of Labor for Occupational Safety and Health).
Meet Dr. Michaels
David Michaels, Ph.D., M.P.H. – Biography from osha.gov
“David Michaels, PhD, MPH, is an epidemiologist and a nationally recognized leader in the scientific community’s efforts to protect the integrity of the science on which public health and environmental policies and regulation are based. Before coming to OSHA on December 9, 2009, he was Professor of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services, directing the department’s Project on Scientific Knowledge and Public Policy.
From 1998 to 2001, Dr. Michaels served as Assistant Secretary of Energy for Environment, Safety and Health. In that position, he was the chief architect of the Energy Employees Occupational Illness Compensation Program, the historic initiative to compensate nuclear weapons workers who contracted occupational illnesses as a result of exposure to radiation, beryllium and other hazards. The program has provided more than $5 billion in payments to sick workers and the families of deceased workers.
In 2006, Dr. Michaels was awarded the American Association for the Advancement of Science’s Scientific Freedom and Responsibility Award, and, in 2009, the John P. McGovern Science and Society Award given by Sigma Xi, the Scientific Research Society, for his work in scientific integrity and for gaining compensation for nuclear weapons workers.
Dr. Michaels is the author of many scientific and policy publications, including Doubt is Their Product: How Industry’s War on Science Threatens Your Health (Oxford University Press, 2008). He is a graduate of the City College of New York, and holds a Master in Public Health and PhD from Columbia University.”
“Jordan Barab joined OSHA as Deputy Assistant Secretary of Labor for Occupational Safety and Health on April 13, 2009.
He previously served as Special Assistant to the Assistant Secretary of Labor for OSHA from 1998 to 2001, when he helped the Agency to promulgate the ergonomics workplace safety and health standard that was repealed by Congress in March 2001.
For the House Education and Labor Committee, he was Senior Labor Policy Advisor for health and safety from 2007 to April 2009.
Mr. Barab worked on workplace safety issues for the U.S. Chemical Safety and Hazard Investigation Board from 2002 to 2007; he was a Health and Safety Specialist for the AFL-CIO from 2001 to 2002; and he directed the safety and health program for the American Federation of State, County and Municipal Employees from 1982 to 1998.
He also created and wrote the award-winning weblog, Confined Space, from 2003 to 2007.
He holds a master’s degree from The Johns Hopkins University and an undergraduate degree from Claremont McKenna College.”
At this point if change was ever going to happen at OSHA these two individuals are the right people for the job. Both individuals have been leaders in the protection of the worker. If change doesn’t happen at OSHA with Dr. Michaels and Mr. Barab at the helm it may never. Questions however remain – will it be the right change, will the Congress give OSHA more authority, will the new leadership’s “new sheriff in town” attitude do further damage to an already poor OSHA image?
What is happening in Congress?
On April 23, 2009 a bill was introduced to the House, H.R. 2067: Protecting America’s Workers Act. The stated reason for H.R. 2067 is “To amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for other purposes.”
In a press release from the bills co-sponsor and Chairman of the House Committee on Education and Labor George Miller (D-Calif), the four main aspects of the bill include the following:
Protect More Workers
Strengthen Health and Safety Penalties
Improve Whistleblower Protection
Allow Workers and Their Families to Hold Dangerous Employers Accountable
So why would the Occupational Safety and Health Act of 1970 need to be updated? The American Society of Safety Engineers’ Council on Practices and Standards explained in a report titled International Corporate Criminal Liability in the Workplace the following after reviewing U.S. laws in addition to several other countries. “As of yet, the U.S. has not enacted a comprehensive system of laws specifically designed to hold corporations and other organizations criminally liable for management decisions that result in criminal offenses.” This was also highlighted in a famous Frontline Report, A Dangerous Business, in the section Toothless in Washington? there is a listing of criminal prosecutions of workplace fatalities. Although this information is from 2003, it is no less relevant today. This report states “Since the creation of the federal Occupational Safety and Health Administration (OSHA) 32 years ago, there have been more than 200,000 workplace-related deaths. However, OSHA has referred only 151 cases to the Justice Department for criminal prosecution — and the maximum penalty companies face for a “willful violation” of OSHA laws is a misdemeanor. Federal prosecutors have declined to pursue two-thirds of these cases, and only eight of them have resulted in prison sentences for company officials.”
Would OSHA become stronger by being able to levy larger penalties and have company officials face real prison time for negligent actions? I think the answer is yes. Would I have concerns being an EHS Professional? No, as I stated in the intro – In my opinion and through my experience companies with safety as a value do not have a problem with a strong OSHA. In fact companies with safety as a value partner with OSHA, share best practices, mentor other facilities, and join OSHA in the mission to assure safe and healthful working conditions for working men and women.
The UK recently went through similar political discussions culminating with the implementation of the the The Corporate Manslaughter and Corporate Homicide Act 2007 which became effective April 6, 2008. In Part 3 we will look at this legislation and the debate that lead to its passage.
In the article I wrote where I tried to answer the 9 questions posed in the OSHA Listens Event, there were a few comments posted that I think spark some interesting conversation. Here are the comments…
“Like the rest of our current government, OSHA has been taken over by an academic elitist who, unlike real world practitioners cannot relate to everyday challenges to overcome resistance to working safely. Excess Fines are a testimonial to two things – the current effort at redistributing wealth (socialism) and the failure of OSHA to work effectively with safety professionals in the field in an effective collaborative manner.
Why should government work hard at anything when you can simply penalize people into submission – just tell everyone it for their own good and they will certainly all believe it. OSHA is now just another repressive arm of the government takeover of the economy – currently at 51% and growing. Safety – yeh , right.”
“Good ideas. But do you really think that a government agency will implement anything that makes sense? OSHA will take decades to change. Now they just make a lot of noise and beat their chest about all the fines and violations they have issued. And make threats.”
I think these comments bring up two very important points.
OSHA will always be viewed in the context of the current political climate (which makes a lot of sense because the current administration appoints several key individuals within OSHA).
OSHA has an image problem.
The first point is very eloquently explained by David Weil in an essay he wrote called “OSHA: Beyond the Politics”. Here is his explanation.
“From its inception in 1971, few government agencies have been as maligned as the Occupational Safety and Health Administration (OSHA). Critics on the political right have regarded it as the embodiment of onerous government, the promulgator and enforcer of expensive and ineffective standards, an agency with a deep reach that mercilessly wields a penalty bludgeon needlessly sending many small businesses to bankruptcy court. At the same time, critics on the political left have often chastised OSHA for failing to fulfill its mission. They argue that the agency is stymied by too few inspectors and too small a budget to carry the weight of its legislative mandate: “[to] assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” They claim that OSHA is either the victim of Democratic administrations too timid, or Republican administrations too ideologically opposed, to exercise its authority to reduce workplace injuries and fatalities.”
The second point I think is exacerbated through politics. However, it can be addressed through action. Maybe those actions will not always be viewed favorably, but for there to be the impression that OSHA “ just makes a lot of noise and beat their chest about all the fines and violations they have issued. And make threats” as the commenter stated does not bode well for workplace safety.
So, do we need OSHA?
Many EHS Professionals deal with issues relating to management commitment. As you all know with the tough economic conditions we have experienced, many companies have made tough choices with expenditures and staffing and the Environmental, Health, and Safety budgets were not immune to cuts. I am not implying that throwing money at workplace safety will solve all problems, but many times in business you can tell a company’s commitment to safety by looking at the capital and expense spending budgets. My point, unfortunately I do not believe we are to the point where workplace safety is viewed as a Value (as discussed in the video) in every company. The actions of leaders in organizations when faced with looking at the bottom line do not reflect an “integration of safety into all we do” mentality. Thus, as an EHS Professional working in industry I believe until safety is viewed as a Value and integrated into how companies operate, it is necessary to have a strong OSHA.
So how do we have a strong OSHA?
In Part 2 I will discuss the current political initiatives and the changes in leadership at OSHA with the additions of Dr. David Michaels (Assistant Secretary of Labor for Occupational Safety and Health) and Jordan Barab (Deputy Assistant Secretary of Labor for Occupational Safety and Health).
I must admit up front I cannot take credit for finding this short Hazard Communication Video (Thank you Jack Benton over at EHS & Safety News America), but it is too good not to share. While doing training I like to tie in YouTube Videos as commercial breaks during the training. This video covers quite a bit of information during its 2 minutes. Hope you find this helpful when putting together your next Hazard Communication training agenda.
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