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The confusion over workplace safety
By David R. Leng & Aaron Black

Would you drive 50 miles an hour in a 25 mile an hour zone just because there are no police to stop you? And knowing full-well you could seriously injure or kill someone? Then why, knowing OSHA doesn't have jurisdiction over them, would a municipality not have a safety program?

Sadly, some municipalities don't give their full attention to safety programs because they believe they're not under the jurisdiction of OSHA. But any municipality that takes the easy route when it comes to protecting their employees is opening themselves up to serious consequences.

All employers-private, public, or municipal-are required to provide a safe workplace for their employees to prevent or reduce the risk of accidents, whether it be confined space, walking/working surfaces, personal protective equipment, training, and so forth. The reasons for a safety program are obvious:

  1. You could have a life-altering injury with an employee or even a life-ending one.
  2. If you don't have a safe workplace, workers' comp premiums will be significantly higher.
  3. If employees are seriously injured and were not properly trained on doing the job, they may try to prove that the municipality was negligent and sue for damages.

Many municipalities have failed to implement best practices for their programs. For example, having a robust accident investigation procedure and proper training. Without it, they won't know how to determine the cause or what happened. Thus, they will be unable to make changes to prevent someone from getting hurt in the future. But more importantly, if they don't know the cause, they won't know if the employee was injured on or off the job or if the extent of the injury was as bad as they were led to believe. Now you have an employee who is out of work longer than necessary with significant dollars being spent by the municipality's insurance company. And, ultimately, they will pay higher premiums.

There are also "safety practices" that are not related to employee injuries, such as abuse and molestation. Some municipalities aren't properly screening their employees or volunteers who are near to either the elderly or young children. It could be a summer youth program where college kids have not had proper background checks, which could lead to a significant lawsuit. Pennsylvania has requirements for both employees and volunteers, whether they are single-day volunteers where they can do the Meghan law check or multiple-day volunteers. Either way, they should have full clearances.

It's imperative to have a formal safety program for vehicle safety training and driver MVR (Motor Vehicle Report) review, which includes background on your driver's habits, both good and bad, and whether they have any driving citations and/or fines. Because the next thing you know somebody who doesn't have a valid license or suspended license is involved in a serious auto accident. This is also important for vehicles owned by the municipality that are operated by volunteer fire departments or volunteer EMTs, for example. Insurance underwriters are taking a much stricter look at auto risks and are getting out of certain types of risk. And that's why it's so important for municipalities to have a fleet safety program over which they have some control so that it doesn't negatively impact their ability to get insurance.

In this case, they may give their insurance agent a list of drivers, and they think that's all they need to do. But they don't give the insurance company any drivers from the volunteer fire department. And what if they take out their hook and ladder truck and while speeding through traffic signals, the driver causes an accident and doesn't even have a valid driver's license. It is what the courts call the Doctrine of Negligent Entrustment, which is allowing someone to operate your vehicle who should not get behind the wheel. But this still makes you liable for punitive damages, which are not covered by insurance.

Another key area where municipalities put themselves in harm's way is cyber risk and the prospect of getting "phished" because they failed to train their employees on how to identify things that would cause them to let a virus in or get hacked. It's been stated that 90% of all cyber breaches are caused by employee activity.

Next, there are policies and procedures related to the risk associated with fire, police, public works administration, and other employees such as crossing guards. A Safety Manual gives employees direction on the procedures they should follow related to those risks that they perform regularly.

Another commonly missed safety program is "confined space," which is an area that is not designed for normal occupancy and has limited egress. Some municipalities are missing safety programs, training, and equipment for entering manholes, a confined space. Some municipalities have water and sewage treatment plants, which have many confined spaces.

So, as community leaders, why doesn't every municipality have a formal safety program? One possibility is a lack of OSHA's involvement. Is it because someone isn't beating down doors to enforce rules? And where does the responsibility of the insurance agent come into play? One of the reasons employers aren't getting the full story from their agents is because the typical insurance agent may lack the depth of expertise necessary to understand the programs a municipality should be using.

Regarding the workers' compensation side, we see municipalities that have an experience modification factor well over 1.0 (meaning they're paying more than average rates) and one of the driving forces is the lack of safety training. A very poor return-to-work program can also put a municipality behind the eight-ball. With municipalities being union and many of them smaller, they feel like they can't bring somebody back on transitional duty because they can't afford to pay the person to do the job. So, they're more hesitant than the average. And they're also afraid to bump heads with a union. However, some have negotiated return-to-work stipulations into their collective bargaining agreements that have been successful with having low frequency and low severity of injuries because of their CBA-mandated safety training and returned-to-work requirements.

Employers need to make sure their employees are trained to operate all their equipment, and that they have personal protective equipment (PPE), such as gloves, dust masks, as well as hearing and eye protection. And, if they're working with anything that goes over their head, hard hats. I recall a borough manager who checked in on his crew installing new playground equipment and the backhoe swung around and hit him in the head. He wasn't wearing a hard hat. Fortunately, he suffered only a minor head injury, but it could've been far worse.

Another area that requires attention is injuries from slips, trips, and falls, which seem to trigger musculoskeletal injuries to the back, and can be the basis for fraudulent claims. Another example is a crossing guard getting hit, either walking into or out of the street without holding up their STOP sign. That comes down to training that teaches the guard to hold the sign up and watch the vehicles until they stop rather than stepping in front of a moving vehicle and watching them with their sign still up until they are on the sidewalk.

Sometimes it's the public that's put in harm's way when a proper work area prevention isn't in place, like not putting a plate over an open excavation. We recently worked with a municipality that was replacing storm drains. They placed signs and cones denoting the area as a construction zone. But when it was dark and foggy, someone who didn't see the cones drove through and the car went into the storm drain. The problem? The hole wasn't covered with a heavy plate and there were no blinking lights to alert people when it became dark (or foggy). This resulted in serious litigation issues.

If the borough doesn't have reasonable and prudent procedures and policies to protect their employees and the public, they open themselves up to liability and will ultimately have to pay higher insurance costs. Whether OSHA is watching or not, this is the last place you want to find yourself.

David Leng is Executive Vice President of Duncan Financial Group in Irwin, PA. David holds CPCU, CIC, CBWA, CRM, CWCA designations, and is author of "The 10 Laws of Insurance Attraction," "Turning Premiums into Profits," and "Stop Being Frustrated & Overcharged." He is an instructor for the Institute of WorkComp Professionals.

Aaron Black, CWCA, is Director of Business Development for Keystone's Risk Management Division. Aaron earned a bachelor's degree in Safety Sciences from Indiana University of Pennsylvania (IUP) and has extensive experience in the Insurance, Risk Management, Occupational Safety, Environmental, and Health Profession. He has more than 20 years of experience in safety and risk management.