OSHA REFORM: A DANGEROUS BUSINESS FOR THE AMERICAN FIRE SERVICE?
FIRE COMMENTARY
Currently under consideration by the 103rd Congress are several bills that would reform or modify the federal OSHA program and subsequently state-plan OSHA states. Some of these bills could result in a substantial regulatory and financial impact on municipal fire department personnel and management officials from the company officer level through that of fire chief. If any of the bills become law this summer, the effects would be felt as early as the fall of 1994.
In 1970, when the federal OSHA Act was passed, state and local governments were exempt from coverage unless a state plan adopted the federal regulations. Thus, the needs of local fire service employees never really were considered to be within the scope of OSHA, with the 1910.120 HAZWOPER standard being a notable exception. The Fire Brigade Standard, while sometimes applied to the fire service, was intended for application to private-sector lire brigades. Local fire departments in states covered by state OSHA plans were subjected to the same inspections and citations as the private sector but in most cases were not subject to monetary or civil penalties as a result of citations or violations.
There are two major reform bills before Congress. The foremost is S 575, the Comprehensive Occupational Safety and Health Reform Act (COSHRA). Its companion bill in the House is II R 1280. The Senate and House bills are slightly different, but their major amendments to the OSHA Act of 1970 arc the same. COSHRA is a very complex and lengthy piece of legislation (S 575 was 100 pages long as of this writing). It confronts the fire service with several major issues. Following is a brief outline of the amendments to the OSHA Act it proposes.
- Municipal fire service personnel would be covered by the Act, making fire departments subject to the same penalties and citations as the private sector for violations of OSHA standards.
- Joint employee/management safety and health committees would be mandated, and penalties applied for failure to implement the mandated safety committees and safety and health programs.
- Written safety and health programs would be mandated for every fire department having more than 10 employees. It is likely that volunteer firefighters would be covered under this law or by a later OSHA enforcement policy, unless they arc specifically exempted.
- The general duty clause would be expanded to require fire departments to be responsible for all employees not just their own firefighters— present at their fire scenes.
- The correction of hazards would have to take place in the time specified by OSHA. even if the fire department challenges the citations in court.
- Criminal penalties would be applicable to every company officer, fire chief, sector commander, and controlling authority (board of directors or fire commissioner). Those firefighters riding the seal would be considered supervisors regardless of rank.
- A new criminal condition would be added for willful violations that cause serious bodily injury, defined as injury that involves
— a substantial risk of death:
— protracted unconsciousness:
— protracted and obvious physical disfigurement; or
— protracted loss or impairment of the function of a body member, organ, or mental faculty.
Let’s look at each of these areas and its potential impact on the fire service.
JOINT SAFETY AND HEALTH COMMITTEES
The purpose of the safety and health committee requirement is to bring employees together in a nonadversarial, cooperative effort to promote safety and health at each work site. The safety and health committee is intended to assist the employer and make recommendations regarding ways to address safety and health hazards.
Joint employee/management safety and health committees arc an essential tool for an effective safety program. The COSHRA proposal goes on for eight pages outlining the selection process, procedures, training, and so forth. These details make a very complicated process out of committees. The proposed standard is not performance-oriented. It is perfection-oriented. It requires that the committee meet every 90 days. If its members do not meet every 90 days, the department is subject to penalties of up to $7,000.
I would like flexibility to be creative with my committee. What if I decide that the best way to achieve safety is by taking my safety committee off the engine room floor and sending them on a four-day retreat? On day one, members assess the last 12 months of safety programs. On day two, we cover unresolved issues. On day three, we prioritize these issues and determine what addressing each issue will cost. On day four, the committee drafts the safety vision statement for the next 12 months—we sit down and write out a plan and determine what funding level to add to next year’s budget.
Could this method work to make our team really effective? Is it a truly cooperative effort? Not under COSHRA.
SAFETY AND HEALTH PROGRAM STANDARD AND PENALTIES
The new safety and health program standard would require a written policy statement documenting the current safety and health functions and procedures used by a fire department. This policy could be provided during the orientation/recruit school. You likely would have to test your employees to demonstrate knowledge, maintain records of the training, and retrain annually. These requirements would be cited by an OSHA inspector and the fire department fined if no program was in place, records were missing or not maintained, or the program as written was not followed.
Current OSHA penalty guidelines call for monetary penalties of up to $7,000 for a serious violation of a standard and up to $70,000 for a willful violation. The penalty formula takes into account the size of the employer, the spirit of attempts at compliance, the gravity (severity) of the violation, and the employer’s regulatory history with OSHA. If the safety and health program requirement were treated as one entity for the purposes of a penalty, then the potential liability for not having a program would be $7,000 for a first inspection. However, if OSHA breaks the standard into the 14 separate action areas, then the potential liability would be 14 times $7,000—-$98,000.
If OSHA were investigating a firefighter fatality in a case where a department did not have a safety and health program in place, then it would have the option of invoking the egregious penalty policy, which allows OSHA to multiply the willful violations citations by the number of employees present, providing maximum-impact fines. Where citations are issued for willful violations, the penalties can be as high as $70,000 per violation for each employee exposed. Fourteen safety program areas times $70,000 equals $980,000 for each employee exposed. If the fatality occurs at a multicompany operation, such as a second-alarm fire, with 60 firefighters present, the potential liability would be $58.8 million dollars.
Such an amount certainly would generate headlines. That is, by the way, the real purpose of the policy—to send a message. OSHA invoked the egregious penalty policy only five times in fiscal 1993.
NFPA 1500 VS. A MANDATED SAFETY AND HEALTH PROGRAM
Currently, under the general-duty clause, OSHA can cite employers for safety and health hazards that are not covered by an OSHA standard. NFPA 1500 is one such document that OSHA can cite under this clause. However, OSHA cannot use the general-duty clause if an OSHA standard exists for a particular operation, even if the OSHA standard is less stringent than the industry standard.
Several scenarios are possible under COSHRA. If the COSHRA safety program is adopted as written, then the OSHA safety and health program would be the measure for an effective program and may result in less protection than 1500 because it is more vague. If OSHA adopts through regulation NFPA 1500, the safety program standard would be very stringent. Or, OSHA may adopt a watered-down semblance of 15(H)— a compromise to quell flaming fire service passions.
GENERAL-DUTY CLAUSE EXPANSION
COSHRA proposes to expand the general duty of an employer to provide a safe and healthful workplace for all employees at the employer’s work site. This change threatens the entire U.S. mutual-aid system. In my county, five neighboring counties provide mutual-aid support to the county on a regular basis. The departments include a fully paid, nationally recognized department; combination departments; and all-volunteer companies. With OSHA’s expansion of the general-duty clause, our ftreground officers would become responsible for assuring that the mutual-aid companies’ safety programs are maintained, that employees are trained to appropriate levels, that employee medical monitoring is conducted, and that their apparatus has been preventively maintained. In essence, we become the employer for the duration of the incident.
If one of the mutual-aid firefighters were to die on the fireground and OSHA were to determine that training was inadequate or negligent, then we would share the burden with the mutual-aid company’s management. It does not matter if we actually were aware of the conditions, because COSHRA assumes by definition that the incident manager has such knowledge.
Our department is glad to get water and personnel when we call for support. The mutual-aid companies operate within our command system and follow our SOPs, but we can’t be their employer.
HAZARD CORRECTION
Under COSHRA, hazard correction (“abatement” in OSHA-ese) following a citation would have to occur within the time specified by OSHA, even if the fire department chooses to challenge the citation. This amendment takes a “guilty-until-proveninnocent” approach toward citations and assumes that the OSHA inspector is always correct, the citation is truly a hazard, and the department can fix the problem in the time specified.
The time required to correct a serious haz ard generally is specified by OSHA at the time the citation is given. There is no regard for the fact that citations are often challenged. Since the challenge may be legiti mate, the employer should be allowed to delay the correction time.
Safety is not a black-and-white issue. It has many shades of gray. Compliance with OSHA is the same. There are many different ycl correct ways to comply. If we or OSHA believes there is only one approach, then we have tunnel vision. The fire service recently saw an extreme example of tunnel vision in the NFPA 15(K) rule requiring that a fourperson crew be on site prior to beginning an interior attack if a 1 ½-inch line or larger is necessary to control the fire. There is an easy way around this rigid rule—go in with a 1%-inch line (I realize it’s not commercially available yet) with a smooth-bore nozzle (I have not completed my hydraulics evaluation to determine if this idea will work) and go in with backup.
Fire departments need to preserve the flexibility currently available in the OSHA system. Several years ago, I was involved in a union-generated complaint inspection surrounding the issue of riding the back step of fire engines. It was clearly a general-duty violation, with NFPA 1500 used as a reference. We discussed the correction of this hazard with the department prior to closing the case and issuing the citation. It was the department’s responsibility to correct the hazard. The department carefully evaluated its circumstances and, in cooperation with the risk manager, developed a compliance plan that started the first day of the inspection and enabled the department to continue operations until new engines were placed in service 24 months later. The plan included the use of chase vehicles, a variance to allow back step riding if the chase vehicle broke down while responding to a first-due fire with trapped victims, and a staged apparatus purchase plan that allowed the proper budget channels to function.
This arrangement would not have happened at all under OSHA reform; only the short-term solution that immediately complied with the law would have occurred. The department would have been required to be in full compliance within two to three weeks once the case was closed. It would have been impossible to order seven new enclosed engines and place them in service in that period of time.
CRIMINAL SANCTIONS
COSHRA includes an expansion of the criminal sanctions that would be applicable to every officer, management official, or supervisor having direct management, control, or custody of any place of employment. This means that the fireground officials (company officer through the chief) at a fire scene would be subject to criminal prosecution if willful violations were issued. For each willful violation cited after a fatality, the prison term would be up to 10 years. In the case described earlier, there were 840 violations. You would be very old and gray after you got out of prison. In reality, few people have gone to jail as a result of willful violations, although it still is a distinct possibility under the law. For a second willful violation that resulted in a death. the fire officer could receive a prison term of up to 20 years.
Under COSHRA, individual fines—not payable by the employer—for the first willful violation would be limited to $250,000 per violation. The maximum corporate fine (separate from the violation penalty) would be $500,000 for each willful death/violation.
COSHRA also adds new criminal liability for willful violations that cause serious bodily injury. The new definition of serious bodily injury expands the current definition of serious injury, making routine fireground injuries a criminal matter. The new definition would include any injuries that involved a substantial risk of death; protracted unconsciousness; protracted and obvious physical disfigurement; and protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Under these broad definitions, a seconddegree bum that left scars or a back injury that forced an employee to retire on disability could become criminal matters.
Any OSHA reform must be flexible enough to achieve real success in firefighter safety. Municipal departments should be covered by OSHA without facing monetary penalties and criminal liability. The generalduty clause expansion is unnecessary. Hazard correction should be professionally managed, not micromanaged. Injury definitions should not be broadly defined.
