August 5, 2011 Celeste Monforton, DrPH, MPH 0Comment

Earlier this week, I reported on the death of Margarito Guardado Resinos, 34, at a construction project in my hometown of San Marcos, TX. Mr. Resinos employer, Jetka Steel Erectors, had been inspected by OSHA in December 2010, at a different construction site, and received citations in May 2011 for four serious violations of safety standards. I noticed however that the $12,000 penalty proposed by OSHA for the violations had been reduced to $6,100 through a settlement agreement with the company. Moreover, two of the four serious violations were reclassified with the label “other-than-serious.” I wondered what Jetka Steel Erectors agreed to do to justify the OSHA dispensation. I requested a copy of the signed settlement agreement from the OSHA area office in Corpus Christi, TX. My FOIA request was processed with record speed and I received the document, within 24 hours.

As I wrote in my earlier post, I suggested that for such a substantial reduction in the penalty, Jetka would have been expected to do something substantial as well, to improve their safety program. I wondered, for example, whether OSHA insisted the firm implement a comprehensive occupational injury and illness prevention program. Such a program would involve front-line workers and managers in identifying existing and potential hazards related to their steel erection business, and taking steps to control or eliminate the hazards. The settlement agreement between Jetka and OSHA didn’t go that far. Instead, Jetka agree to:

Waive their right to contest the citations and penalty;

Correct immediately the three electrical violations and numerous violations for inadequate fall (from heights) prevention;

Make payments of about $335 over the next 18 months to the U.S. Treasury for the OSHA penalty; and,

Contact within 60 days the Occupational Safety and Health Consultation Service (OSHCON) and request a site visit.

This last provision doesn’t guarantee the employer will implement a comprehensive safety program, but could put them on a path to do so.

OSHCON is a program funded largely by the federal government but administered by State agencies, to provide free, confidential health and safety advice to small- and medium-sized business. In Texas, the program is administered by Division of Workers Compensation in the Department of Insurance.

The OSHCON staff are completely independent of OSHA and its inspection force, they do not issue citations and do not share their findings with OSHA (except in rare instances when an imminent danger situation exists at the worksite.) An employer who requests OSHCON’s services will receive expert on-site assistance in recognizing hazards and ways to solve them. The only up-front obligation for the employer is a promise to correct, in a reasonable period of time, any violations of OSHA standards observed by the consultants. According to OSHA, about 30,000 firms last year took advantage of the program’s services.

Another benefit of the OSHCON program is their expertise in helping small businesses establish comprehensive injury and illness prevention programs. OSHA’s agreement with Jetka didn’t require the company to take that step, but it’s likely that the safety consultants would discuss the value of such a program with the firm. Not only would the company have a system to find and fix hazards before a worker is injured or property damaged, but with a program in place, the OSHCON staff can recommend to OSHA that the firm be exempt from routine OSHA inspections for at least one year. I’ve not been able to determine yet whether Jetka contacted an office as required by their agreement with OSHA. Under the June 22 agreement, they had 60 days to do so.

The death of Jetka Steel Erector employee Margarito Guardado Resinos, 34, is now under investigation by federal OSHA to determine whether the company violated any safety standards. Sadly, Mr. Resinos’ death provides federal OSHA an opportunity to assess its own performance. Was its December 2010 inspection thorough? Did the agency assess the firm’s compliance with steel erection standards including those related to erection of pre-fab steel buildings. Were some key warning signs missed during the inspection that might have prevented the July 27 incident?

The review’s objective is not to find fault with any individual inspector or supervisor, but to look for ways to improve the effectiveness of OSHA’s inspections. The process would start by ensuring that the staff conducting the fatality investigation are not part of the same office involved in December 2010 inspection and June 2011 settlement agreement.

With so few OSHA inspectors, and inspections conducted annually at only about 1% of US workplaces, we need to make sure that each and every one is of the highest quality. It would be one small way to honor the memory of Mr. Margarito Guardado Resinos, 34, and the thousands of other US workers killed on-the-job every year.

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