Safe Staffing Levels? OSHA and Legal Liabilities

Introduction

OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe. Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority. Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced risk of accident or workplace violence.

OSHA duty officers normally tell complainants that there are no written regulations addressing safe staffing levels, and that it is not unlawful to work alone. But employers would be wise to consider staffing levels to protect employees from recognized hazards. In many situations, appropriate staffing can reduce risks of accidents and slow-developing injuries, and ensure employee safety and emergency response. Accordingly, understanding of issues relating to safe staffing levels can be key to minimizing risks to OSHA citations and other legal liabilities.

OSHA and Legal Liabilities

Under the OSH Act’s General Duty Clause (section 5(a)(1)), employers must provide a workplace free from any recognized hazard likely to cause death or serious physical harm. For OSHA to cite an employer under the General Duty Clause, the hazard must be recognized by the employer or in the industry. Where insufficient staffing is recognized to expose employees to hazards, employers face liability for Serious or Willful OSHA citations. Recognized hazards principally exist where staffing levels render employees unable to perform critical safety tasks. Further, injuries to employees resulting from alleged understaffing could result in workers compensation claims. Injuries to non-employee workers could result in tort claims, alleging negligence and a failure to meet the standard of care of a reasonable employer.

Though there is no criminal liability for a willful violation brought under the General Duty Clause, a willful violation of a specific regulation resulting in a fatality can result in criminal prosecution punishable with six months in federal prison. State governments occasionally also prosecute employers (and managers) for a range of criminal violations relating to deaths in their workplaces.

Emergency Response and PSM Facilities

Complex facilities require minimum staffing levels to ensure appropriate response in the event of natural disasters and major emergencies. Storms, hurricanes, tornadoes, floods, and earthquakes typically require minimum available staffing to prevent further damage and catastrophes. Implicated OSHA standards include the following:

Under OSHA’s Emergency Action Plan regulations (29 CFR 1910.38(c)), employers are required to have procedures for evacuation and operating critical plant components during an emergency. Employers must have adequate personnel to facilitate an emergency response, as necessary.
Where employers utilize their own team for emergency response, the team must be adequately staffed to perform evacuations, firefighting, or chemical spill responses.
Under the Permit-Required Confined Spaces standard (29 CFR 1910.146), staffing must be adequate for all roles to be present (entrant, attendance, and entry supervisor), and an entry-rescue team (if required).
For facilities governed by the Process Safety Management (PSM) standard (29 CFR 1910.119), the regulations require staffing to perform tasks safely and maintain process safety information, procedures, training, and emergency planning. Insufficient staffing levels can constitute a PSM violation where it creates unsafe conditions that make a chemical release more likely.
After an accident, an employer may need to contact emergency services, immediately investigate the facts of the accident, and provide clear direction to emergency responders to ensure they know where to go and how to protect themselves from any hazards. Insufficient staffing may render the employer unable to provide that assistance.
In addition to staffing levels, employers should take into account the need for adequate supervision for the employees working. Supervision shortages most often occur during off-shifts.

Fatigue, Overwork, and Workplace Violence

Insufficient staffing can result in employees working extended shifts. Overworked employees could lead to wage and hour violations, including under the FLSA and state laws. Extended hours can result in employee fatigue and a declining quality of decision-making that results in greater exposures to hazards. Employers may also face the following hazards:

Understaffing can contribute to ergonomic hazards, to the extent that employees attempt to lift heavier loads or move heavier equipment that would normally require a team effort.
Employers operating heavy equipment may lack “spotters” and may be unable to complete tasks efficiently or safely.
Lower staffing levels in many environments, such as retail environments and healthcare, can result in increased risks to workplace violence (often addressable with security staffing in particular)
Employers may be choose to address these issues with elimination or engineering strategies, to minimize employee exposure to safety hazards.

Where to Find Staffing Levels

Optimal safe staffing levels and ratios vary significantly based on the industry, the size of a worksite, the complexity of operations, type of equipment, and severity and probability of workplace hazards. Safe staffing levels can be determined in part by a job hazard assessment by a qualified safety professional, in consultation with industry standards and Original Equipment Manufacturer recommendations. Benchmarking is often available from industry organizations and consensus standards. For firefighting, NFPA 1710 staffing standards are generally considered safe and effective, aiming to ensure adequate resources for fire suppression, EMS, and special operations.

Failure to comply with industry consensus standards can create OSHA General Duty Clause liability, as OSHA often relies on industry standards and industry recommendations as bases for an alleged “recognized hazard” in the industry.

Engage Qualified Outside OSHA Counsel

Because of these many legal liabilities, it is essential for employers to engage a qualified attorney experienced in OSHA compliance. If you have an accident or OSHA opens an inspection, experienced OSHA counsel can be integral to defend the employer and conduct proper OSHA inspection management. Improperly managed inspections can result in avoidable civil and criminal liability. Please contact the authors for more information

About the Authors:

Adam R. Young is partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation. Mr. Young can be contacted at ayoung@seyfarth.com (312/460-5538).

Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. Mr. Lies can be contacted at mlies@seyfarth.com (312/460-5877).