The Occupational Safety and Health Act of 1970 established that employers must provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” More than a half century later, OSHA standards and regulations serve as the baseline for protecting worker safety and health.
But despite this history and the widespread acceptance of OSHA’s guidance, you may encounter a leader who wants you to violate an OSHA regulation.
How should you respond? This question carries both ethical and legal implications. Remember, you have an obligation to do what is necessary to protect the safety and health of your workforce and there are legal consequences for noncompliance. And while OSHA sets the regulatory standards, it is your responsibility as a safety professional to establish ethical standards for yourself and your team.
“As a profession, we set out and say, ‘This is our ethical bound. This is how we practice what we do with regard to safety,’” says James Boretti, CSP, president and CEO of Boretti Inc.
Boretti adds that our Code of Professional Conduct works to set a standard by which safety professionals can work to identify what is considered ethical and unethical within the practice of safety.
He also stresses the importance of developing a culture in which employees are comfortable speaking up about safety issues. One source of ethical dilemmas is the fear of repercussions for sharing concerns.
“Being able to communicate in a matter that is truthful, whether it be good news or not, you end up with a fair sense of justice,” Boretti explains. “As a result, people are willing to contribute and don’t have a fear of bringing things forward.”
Fostering psychological safety not only improves your relationship with your direct reports, it also improves your relationship with senior leaders. Psychological safety, paired with a shared sense of ethics, could help you communicate with a boss who asks you to do something you know is wrong.
For example, if your employer asks you not to make note of a recordable injury because the organization has gone a long time without one, you must be able to tactfully maintain ethical boundaries and frame the situation as an opportunity to improve your safety and health management system.
“It’s on you to say, ‘Well, I can’t do that. I’m bound by my ethics and we know internally that’s the wrong thing to do,’” Boretti explains. “If we’re going to have a recordable break that cycle, then we should find out what led to that recordable, correct it and go even longer with the next trend.”
It’s important to help others understand how compromising your ethics or values could impact people, the environment or property — and to tailor your approach according to your culture.
“I have found the way you approach it makes the biggest difference in the world,” he says. “Talk about how to resolve the issue while staying within ethical bounds.”
From a legal perspective, the most important thing to remember is that OSHA regulations are law, and there can be serious repercussions if you are found to be noncompliant.
“On top of all the right reasons for doing safety, there’s going to be potential liability for the employer and in some instances, individuals who are responsible for safety,” says Todd Logsdon, CSP, national workplace safety practice group co-leader and partner at Fisher and Phillips LLP. “It’s mandatory, not optional, and there are going to be financial and potentially criminal penalties involved with failure to comply.”
Share with your leadership the direct and indirect costs that can be associated with noncompliance, as well as the potential liability — be it workers’ compensation, civil liability or criminal liability. Employee injuries will impact your workers’ compensation costs; if a non-employee is injured, there could be civil litigation.
“If there’s a willful violation that results in a fatality, there can be a criminal referral and a criminal prosecution under the federal system,” Logsdon explains. “If you willfully ignore employee safety and there’s a fatality, then you could be looking at a criminal prosecution.”
Examine whether your workplace has any prior OSHA citations and ensure those issues have been addressed.
“You can go back and look at past citations, which will inform you what OSHA was looking for when they came to your workplace,” he says. “If that’s happened within the last five years and OSHA comes back, that could be a repeat citation.”
The financial costs of citations, particularly if they are willful or repeat citations, can range from tens of thousands to hundreds of thousands of dollars.
Along with any financial or criminal liability for noncompliance, you also risk damaging worker morale, your reputation and your brand. Given the greater focus on environmental, social and corporate governance factors, Logsdon says the publicity around citations, accidents, injuries and fatalities is having more of an impact.
“There are lots of things that that come back to safety, and there are lots of studies that get into how safety and quality interact. If you have poor safety, you probably have poor quality and vice versa,” he says. “Being in compliance at a minimum is going to be beneficial to the company's bottom line — not just in saving cost, but in having a well-rounded workplace.”
Listen to the Case for Safety Podcast featuring James Boretti and Todd Logsdon for further insights on the ethical and legal considerations of OSHA compliance.
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