By Gary Finch
OSHA gives each state an option. They can operate their own independent Safety and Health Program, providing the safeguards it poses are equal to or exceed federal OSHA standards and enforcement. If they choose not to do this, then the federal government will have OSHA implement the federal program. The following states use the federal program to govern health and safety in the private sector.
Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, North Dakota, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin. Guam and Washington DC also operate under federal OSHA.
Since these programs play by the same rule book and have the same sheriff (federal OSHA), we can count these as one state, but with a major caveat. The states in bold print have not had a funeral home inspected during the survey period. In some of the states, Kansas comes to mind, there hasn’t been a funeral home inspection in twelve years.
How is it that hundreds of funeral home employees complain in Texas and West Virginia, but never complain in Kansas? Are funeral directors and embalmers in Kansas similar to the ‘Stepford Wives”, perfect in every way? That was a 1975 movie so most of you will not understand the reference. Be that as it may, there is no reasonable explanation. If you live in one of the bold printed states, take a nap or go fishing. The rest of you have to get about complying with federal laws on employee safety.
The following employ a state operated safety and health program.
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Puerto Rico operates a private program.
Connecticut, New Jersey, New York, and the Virgin Islands operate a private program for government workers.
As you would expect, the private enforcement states also have inconsistencies. The bold print states have had no funeral home inspection activity over the survey period. If you work there, let us know if the telephone number to the OSHA enforcement line is really connected.
There are greater inconsistencies within the states that operate their own program. At first glance, it seems your chances for being inspected are greater. But that is only the case if you live in North Carolina, Virginia, or Georgia. These states have targeted businesses that use formaldehyde. They don’t admit it, but that is a back-handed way of targeting funeral homes.
During the survey period, which runs from 2/28/2000 thru 2/28/2005, there were 427 inspections. Of the 427 funeral home inspections, 117 were North Carolina funeral homes. Virginia has conducted 90 funeral home inspections. Georgia has conducted only 7, but they have just begun their sweep.
Now, before anyone gets out the crying towel for North Carolina, let me advise you that their enforcement program has half the bite of an 80 year old grandma without her dentures. In other words, there is a lot of flag waiving but very little flag burning in North Carolina, Virginia, and Georgia.
You can take the combined 214 inspections to date from those states, and the fines don’t total what some single inspections have in Ohio, Texas, Oregon, Washington, and Utah. The fact is, OSHA enforcement is not fair, has never been fair, and will never be fair. And there is not a thing I can do about it, but you are free to try.
Having educated you on the anomalies of OSHA enforcement, I here-to-fore set out my forecast. They are just guesses, so don’t hold me to them.
Georgia, North Carolina, and Virginia – In North Carolina and Virginia, they have targeted funeral homes across the state. If you haven’t been inspected, you should expect to be this year. First inspections rarely result in fines. There is some risk that they may conduct follow-up inspections. If they come back to your facility a second time and you have not fixed the things they found wrong the first time, it could give you a major hit. A recent follow-up inspection in Ohio resulted in OSHA proposing $98,950 in fines. They settled for $68,950. The question is, “Do you feel lucky?” Georgia has targeted one third of the state. That would be the area west of Atlanta.
All other states with private programs – These states are not barred from making planned funeral home inspections. Federal OSHA is barred from this. My projections are based on their historical frequency of inspections, and weighted toward those states that seem to impose higher fines per citation.
Most likely to make inspections: California, Maryland, Oregon, Tennessee, Utah, and Washington.
All other private states have to be considered unlikely to make inspections or to issue heavy fines. However, you never know. If I had made this list six months ago, Ohio would be on it. They have now gone to number one on my list of feared states.
Under George W. Bush, OSHAhas restricted planned inspections to industries with high accident rates. That excludes funeral homes. A state would have to get a variance to get this changed, and that is not likely. This still leaves it open for OSHA to conduct complaint investigations, which is where the biggest fines usually originate. So, you can be somewhat calm if you are maintaining an employee safety program. However, if an employee complains to OSHA, you can expect them to contact you.
The exception is the bold listed funeral homes that are under federal OSHA. If you own a funeral home in Kansas or one of the other states where OSHA is napping, then 2005 might be an excellent time to take that “Around the World” trip you’ve been putting off. If they haven’t inspected a funeral home in the last five years, then they probably will not unless they get a complaint. Until someone confirms the phones are in order, I’m not looking for that to happen.
Remember, these are only projections. If you want to be safe, call us to develop your safety and compliance program. It is also worth noting that in New Jersey, a funeral director quit work and brought civil action against the funeral home owner. He claimed that he had asked for a safety program, and it was not provided. As a result, he developed stress and had to leave the industry. He sought funds to go back to college and get an education in another field. The last report I had, the funeral home owner was offering $50,000 to settle and the employee was holding out for more.
You see, OSHA is the law of the land. When OSHA fails to enforce the law, then the employee is free to not just notify OSHA, but to bring civil damages against you. Most of the cases are not covered by Errors and Omissions Insurance, and they are expensive to litigate. Therefore, attorneys often encourage you to settle them rather than running up major attorney fees and a possibility of losing in court.
It’s a lot easier to get in compliance and stay there folks. Or, “Do you feel lucky?”