Q & A with OSHA’s Patrick Kapust
Preliminary data for OSHA’s Top 10 most cited violations for fiscal year 2020 was announced Feb. 26 during an exclusive webinar hosted by Safety+Health. One week later, Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, talked with S+H Associate Editor Kevin Druley to discuss the list, as well as what occupational safety and health professionals can do to help correct hazards in their workplaces.
Safety+Health: Why do you think the Top 10 generally stays the same from year to year? How do you interpret that? Is it frustrating?
Patrick Kapust: Well, although there has been a little variation over the years, the OSHA Top 10 remains fairly consistent, mainly because standards such as controlled hazardous energy, hazard communication, machine guarding, fall protection and powered industrial trucks are things that involve controlling hazards across many industrial sectors in millions of workplaces. It’s not surprising, given the breadth of OSHA’s regulated community and limited resources, that we continue to see violations of these standards, even though compliance isn’t difficult and often represents the core of many safety and health management systems. While we’d like to see more consistent compliance, we continue to look for opportunities to educate employers and better protect workers.
S+H: What is it about the standard on fall protection that yields so many violations? How does OSHA advise employers to fix recurring mistakes?
Kapust: Fall hazards are fairly universal across industries. OSHA classifies fall hazards into three categories: falls on the same level, falls to lower levels, and slips and trips. Workplace fall incidents frequently involve slippery, cluttered or unstable walking and working surfaces; unprotected edges; floor holes and wall openings; unsafely positioned ladders; damaged guardrails; or misused fall protection equipment. When dealing with falls to lower levels, use of guardrail systems, fall arrest systems, safety nets, covers and restraining position devices can prevent many deaths and injuries. And we’ve found that falls at the same level, as well as slips or trips, often result from unsafe work practices, poorly maintained equipment, poor housekeeping and a lack of effective training.
S+H: Musculoskeletal injuries have long been prevalent in the workforce, and the surge in remote work over the past year seems to have increased awareness of them. Although federal OSHA doesn’t have a standard on ergonomics, the agency has issued citations for ergonomic violations via the General Duty Clause. What should employers know about MSDs?
Kapust: OSHA has always said that to reduce the chance of injury, work tasks should be designed to limit exposure to ergonomic risk factors, and engineering controls are the most desirable way to do that, where possible. Transitioning from the workplace to telework/remote work is no different. The same applies. OSHA has developed e-tools to assist employers in the application of ergonomics in the workplace. Employers should share the links with their work-at-home employees and encourage them to follow the guidance. The information can be found at osha.gov. And we also have a link out of our Salt Lake City lab. You can look at those for additional information. As a reminder, OSHA will not conduct inspections of an employee’s home office and does not expect employers to inspect the home offices of their employees. If we receive a complaint about a home office, we’ll let the worker know about our policy. If they make a specific request, we may reach out informally to let the employer know about the concerns. But we won’t take additional action. The enforcement of ergonomic hazards remains in effect for traditional work environments, though.
S+H: In what ways has the COVID-19 pandemic impacted enforcement activities?
Kapust: The pandemic has presented a significant challenge to the agency – one that I believe we’re meeting. Early on, we knew that we needed to adapt our operations, not only because of the significant increase in complaints and pandemic fatalities, but also to ensure the safety and health of our compliance staff. We developed an interim enforcement response plan that does both, using our resources to the agency’s best advantage. As always, we’re prioritizing fatality investigations that include COVID-19-related deaths as well as imminent danger situations. We’re focusing on our onsite activities at high-risk workplaces such as hospitals and other health care providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases. After all this, the area directors are making sure that compliance officers are using appropriate precautions and personal protective equipment to ensure their own safety.
S+H: How are things going in the enforcement division overall?
Kapust: We are responding to imminent danger and fatality events, addressing pandemic-related hazards in the workplace and, of course, keeping OSHA staff safe at the same time. We have issued a number of guidance documents for a broad spectrum of industries and processed more than 13,500 COVID-19-related complaints since February 2020. Our folks in the field and the national office have really gone above and beyond, and I’m really proud to be a part of that team. Moving forward, we hope to be able to get back to more targeted inspections, and we’ll be doing a deep dive on what impact our enforcement had during the pandemic and implementing some lessons learned for future emergency responses.
S+H: You’ve previously said that OSHA isn’t here to cite for the sake of citation. However, as the Biden administration transitions away from its predecessor’s anti-regulatory push, to what extent does this influence agency activities?
Kapust: The agency will continue to take a balanced approach, but enforcement will always be a key component of that strategy. We have compliance assistance for those employers that want to do the right thing and need help implementing safety and health programs. We have a strong enforcement program to act as catalysts for those employers who aren’t proactive. The goal is not to issue citations. The goal is to get employers to change the safety culture and provide greater protection for workers.
S+H: Anything new to share about National Emphasis Programs? How can employers better focus on NEPs and other OSHA partnerships and consultation services?
Kapust: Yes, we’re working on a new National Emphasis Program that directly addresses COVID-19. This aligns with President Joe Biden’s Executive Order on protecting worker health and safety, which he signed on Jan. 21. The NEP focuses OSHA enforcement efforts on the largest number of workers at serious risk of exposure to COVID-19, as well as those employers that are treating their workers contrary to anti-retaliation principles. The NEP encompasses a combination of inspection targeting, outreach to employers and compliance assistance. Since the onset of COVID-19, OSHA has issued a number of guidance documents, including industry-specific guidance to protect workers. OSHA recently, on Jan. 29, released the guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” This guidance is intended to help employers and workers in most workplace settings outside of health care identify risks of being exposed to or contracting COVID-19 at work and to help them determine appropriate control measures to implement.
In addition, OSHA has revised an NEP that addresses silica. The revised NEP aims to identify and reduce or eliminate worker exposure to respirable crystalline silica in general industry, maritime and construction. This NEP targets specific industries expected to have the highest number of workers exposed to silica and focuses on enforcement of any silica standards. It helps employers comply and provides resources, including new frequently asked questions, videos, fact sheets and a webinar. Full enforcement in construction began on Oct. 23, 2017, while full enforcement for general industry and maritime began on July 23, 2018. Enforcement for hydraulic fracturing operations in the oil and gas industry and the obligations for engineering controls in the general industry standard commences on June 23.
S+H: Adding OSHA inspectors was a campaign promise of the new administration. What would the enforcement division foresee if this scenario occurs?
Kapust: We’re hoping to return to a better balance of programmed and unprogrammed inspections. Unprogrammed inspections such as complaints, fatalities and referrals will always remain a priority, but programmed inspections allow OSHA to target high-hazard industries or processes where a greater number of workers are injured or become ill. Of course, adding a new compliance officer doesn’t immediately replace a seasoned inspector. It takes time to develop the necessary training to conduct the same number and quality of inspections that a seasoned compliance officer can perform. Over the next few years, I believe we will see a large focus on compliance officer training.
S+H: What haven’t I asked that you think S+H readers should know?
Kapust: Well, I know that it’s been a challenging time for all of us. Some folks have been working tirelessly on the front lines to keep the country going. Others have seen their workplaces closed and are maybe just now returning to work. OSHA is here to help make sure that workers can continue to be on the job safely and that employers have the information they need to make that happen.