Location and price generally control office-space decisions. Even if you construct a new building or do extensive build-out, you probably have not devoted much consideration to whether your new space meets OSHA requirements.
It’s an office, after all – not a manufacturing plant or refinery. So you rely on your builder or landlord for that. You figure that they’re well-regarded contractors and developers, so presumably they adhered to OSHA requirements along with local ordinances and electrical codes.
Unfortunately, OSHA standards mainly focus on employees working safely, and contractors don’t view the standards as dictating the final structure. Thus, contractors follow OSHA construction standards to protect workers building the structure, but they don’t really think about OSHA standards applicable to the finished structure in the same way that they faithfully adhere to National Fire Protection Association (NFPA) standards such as 70E or state or local building codes. Your building might be structurally sound and safely wired, but don’t be surprised if you discover a missing mid rail on a stairway or missing knock-outs in electric cabinets and fixtures.
Problems Continue When You Take Possession
Another concern is the mindset of many people working in an office environment. Because these workers don’t face the safety challenges associated with heavy manufacturing, office employees and managers don’t continuously focus on evaluating the hazards associated with the task and how to avoid those hazards.
Anyone will be alert in front of a roaring furnace hearth or the clattering mechanism of a press, but most of us are not so alert when braving the cubicle jungle. We just don’t catch the violations. Therefore, there may be more hazards, or at least more OSHA compliance issues, in the finished office setting than one might expect.
But as long as no one gets hurt, the hazards and compliance issues generally will be less significant, right? And OSHA focuses its inspections on employee complaints and on targeted industries that present more serious hazards. So why should I worry a great deal about OSHA compliance in the office setting? I mean, seriously, how often do you see OSHA inspecting a finance office or call center?
The Reality
Most large OSHA penalty assessments aren’t the result of workplace fatalities. An inspection might have been triggered by a fatality, but generally, the majority of citations and penalties result from routine compliance violations that have nothing to do with an underlying fatality.
The biggest risk is to employers that have many locations. The administration changed its policy on citing an employer for “repeat” violations to allow such repeat citations for five years instead of three years. In other words, if another location violates the same OSHA standard within that five-year period, OSHA can assess up to $70,000 per item, depending on how many times the employers’ sites have been cited and the seriousness of the violations.
Allow me to provide an example of how this process can cost a “low-hazard” employer hundreds of thousands of dollars in penalties and considerable harm to the company’s brand:
In this case, OSHA proposed $233,500 in fines against a retailer for exit-access hazards.
Responding to an employee complaint, OSHA found exit routes obstructed by stock and equipment, an exit route too narrow for passage, stacked material that prevented employees from identifying the nearest exit, blocked access to fire extinguishers, workers not trained in fire extinguisher use and boxes stored in unstable 8-foot-high tiers.
OSHA had cited the retailer in 2006 and 2007 for similar conditions at other locations. As a result of these recurring conditions, OSHA issued the company five repeat citations, with $200,000 in proposed fines.
“It’s been 99 years since the fire at the Triangle Shirtwaist Co. in New York City took the lives of nearly 150 workers and nearly 19 years since two workers were killed when they were unable to exit the McCrory’s store in Huntington Station, N.Y., during a fire,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “Blocked fire exits can be deadly. It is that simple.”
I’m not making light of the danger of blocked exits, but the facts of this case were that three times per week, the stores received shipments and the store employees were not trained warehouse employees, and the stock rooms were not well-designed for materials handling and logistics.
Boxes briefly were left in the wrong place, including in front of doors, extinguishers and electric cabinets. Any type of workplace in America could experience these same problems, and if the company had multiple locations, what are the odds that the problems might arise several times in a five-year period?
Lessons Learned from
Others’ Misfortune
Based on cases such as that one and others, here are a few suggestions for you to consider before you take possession of new space:
- Confer with your builder, contractors and/or landlord and make sure that OSHA compliance is considered as the project proceeds, especially with regard to after you take delivery.
- Include OSHA compliance concerns on the “punch list” before taking delivery, especially for routine electrical concerns.
- Make sure that the contractors consider exits, stairs and placement of fire extinguishers and how these areas will be affected by the introduction of workers.
- Design space for its intended use. Storage and stock rooms, loading areas and electrical/HVAC rooms often are neglected.
- Seek specific written assurances that your new space complies with applicable building codes, the “life safety codes” and all applicable OSHA standards.
- Closely scrutinize leases and other agreements to ensure that you have every possible tool available to later compel a recalcitrant landlord to address safety concerns.
- If it’s an older building, get the ducts cleaned and take any other steps to proactively eliminate allergy, dust and other indoor air concerns.
- Anticipate odor issues with new paint, carpet, etc. when you take possession.
- Take a minute to think about security issues and how the office would respond to an active shooter. Please do not take lightly workplace violence, evacuation routes and after-hours security when designing and taking over space.
Now let’s talk about staying out of trouble once you take your space. Even if one is leasing the space, the employer supervising the employees retains the responsibility to ensure a safe workplace and to take whatever actions are necessary to protect its employees, up to and including pulling them from a facility if a landlord will not address hazards.
Similarly, although you may have relied on a recognized build-out contractor, OSHA still can cite you if your employees are exposed to hazards. Remember that rule about the “buck stops here?” You cannot delegate your safety responsibility for your own employees. This means that you doggedly must stay after landlords or owners to correct leaks causing mold; address ventilation issues, poor lighting or security; handle blocked exit paths; and eliminate exposed electrical hazards. Document your efforts so that you can show OSHA your due diligence and also in the event of contractual disputes.
Consider Hazardous Substances Issues
OSHA requires you automatically to assume that asbestos-containing materials (ACM) could be present in buildings built before 1980, but you should investigate asbestos and other similar concerns for more recent structures.
Obtain a written explanation of any hazardous substances in walls, ceilings, carpeting, insulation and other materials. Some buildings still have asbestos present in floor or ceiling tiles, insulation and fireproofing, or in mastic on sheetrock. You should request written assurance that ACM has been addressed.
Although employers were required to quit using asbestos in 1980, it is not uncommon to find materials in newer buildings. If you are moving into an older building, be critical – bordering on skeptical – of your landlord’s claims and ensure that they can document their assertions. If material remains in the building, you will have certain obligations, including providing training to maintenance or housekeeping employees who might disturb asbestos-containing materials. OSHA maintains a useful asbestos checklist at https://www.osha.gov/SLTC/asbestos/checklist.html.
More office employees complain about “mold” than any other potential indoor-air contaminant, although some employees might have allergies or be sensitive to odors and might raise concerns about the smell of new paint or carpet. This could suggest a ventilation issue.
OSHA does not maintain a “mold” standard. Rather, OSHA will cite an employer if it allows mold to continue in a workplace to an extent that “your industry would recognize it as a hazard.” The majority of workplace mold presents no threat, but you should be alert to areas of current or past leaks, where mold can form above suspended ceilings or within walls.
Fire, Emergency Response and Electrical Issues
The next area of concern involves fire and emergency response issues. OSHA does not require fire extinguishers, but insurers or the local government usually require their presence. If fire extinguishers are present, the employer has an obligation to provide basic annual training to all employees on how to operate the extinguishers or to develop an employee action plan, which sets out which employees, if any, should use extinguishers to fight “incipient-stage” fires and which employees should exit. Periodically check for:
- Fire extinguishers that have fallen from wall mountings, have not received the required inspection or service or are partially blocked.
- Exit doors that are partially blocked or inadequate exit signage.
- Materials blocking access to an electrical cabinet or that are stored in an electrical room.
- Your challenge is that an office never has enough storage space, and employees will put boxes, discarded PCs and who-knows-what in electrical rooms, stairways, exit halls and hallways. Not only will you block exit paths or violate electric standards, you may create trip or fire hazards. If an employee trips over a discarded box or a fallen broom and complains to OSHA, the agency probably will cite you, even if you later prevail.
If I had a dollar for every time OSHA has cited an employer for plugging the breakroom microwave into a kitchen plug with no ground-fault interrupter, I’d be a happy man. Similarly, do I really need to remind you to quit using surge protectors in lieu of permanent wiring and electrical fixtures?
Breakrooms often are an afterthought, and no one really thinks about how electrical devices are set up. If you maintain a maintenance or housekeeping area, you probably have hazard communication obligations for the cleaners, solvents and occasional paints stored in the space. Once again, maintenance areas seldom are seen and never considered until OSHA opens a door and beholds a pig sty of violations.
A Few Simple Ongoing Steps
Do something. Seriously, other than quite rightly studying ergonomic solutions to keyboard and other work, how many of you even thought about your office’s OSHA compliance before reading this article?
Conduct a simple survey of your office, determine BOTH the hazards AND OSHA compliance issues (they are not always the same thing), develop a checklist and periodically inspect the office and document what you discover. If you find a problem, fix it and document the correction. Never leave an open item or you may learn about OSHA “willful” violations.
Use office safety as a way to engage employees. Find an employee who would enjoy involvement and give him or her the opportunity to assist you with safety.
Always take seriously any employee safety complaint and document its resolution. A word of warning … the employees who irrationally continue to complain of asbestos or mold long after their concerns have been disproved are the ones who will complain to OSHA. And when they are later discharged for other reasons, they’ll claim that you did so because of their safety complaints to you. So don’t let employee concerns fester.
Howard Mavity is a partner at Fisher & Phillips LLP. Mavity co-chairs Fisher & Phillips’ Workplace Safety and Catastrophe Management Practice Group.