The Compliance Loop: Why OSHA’s Top 10 Never Changes

Every fall the Occupational Safety and Health Administration (OSHA) publishes a preliminary list of the top ten most cited standards found during workplace inspections, a tradition that highlights persistent safety challenges across industries. Remarkably, the exact same ten standards have consistently dominated the list for at least the last decade leaving some to wonder about the effectiveness of federal safety standards and what it is about these ten standards that are giving American employers so much difficulty.

Over the coming months we’re going to explore the answers to those questions by examining the specific parts of these ten standards employers are not getting quite right and provide suggestions for achieving compliance in these areas. But before we get too far into things, we want to take a minute and talk about OSHA. More specifically we want to talk about OSHA’s inception, their overall effectiveness as an agency and the role the American employer plays in the current state of safety in this country.

Why OSHA?

As hard as it is to admit, prior to OSHA’s official debut in 1971 the state of safety in the American workplace had a long history of being pretty dismal. In fact, one of the most egregious and horrific workplace incidents in American history happened a full 60 years before OSHA was enacted. (If you’re not familiar with the Triangle Shirtwaist Factory fire of 1911, you can read about it here).

Fortunately, this tragedy prompted a discussion about workplace safety but unfortunately that discussion carried on for six more decades, the latter part of which saw nearly 14,000 workers dying on the job every year with another 6.5 million suffering from either a work related disability or illness¹—and we’re not talking mild illnesses either. The illnesses American workers were suffering from were things like asbestosis, mesothelioma, lead poisoning and byssinosis (from inhaling dust from cotton, hemp and flax).²

Finally, in December of 1970 the Occupational Health and Safety Act was signed into law and on April 28, 1971 OSHA was officially born, with its first order of business being the creation of standards regulating exposures to the substances making workers ill like asbestos, lead, carcinogens and cotton dust.³

OSHA’s Impact

There’s no doubt that the workplace safety standards OSHA has implemented and enforced over the past 54 years have had a definite impact on the American workplace. Since OSHA’s inception in 1971, workplace fatalities, non-fatal injuries and illnesses have fallen by around 60% however, OSHA’s role isn’t as significant as the role American employers have played in all of this, and how could it be?

With only 1,875 inspectors (853 federal and 1,022 state)⁴  to inspect 11.5 million workplaces, the chances of being inspected by OSHA are less than 1%.

In fact, in 2023 OSHA conducted a total of 34,221 inspections which represents 0.29% of those 11.5 million workplaces (assuming each inspection was of a different workplace which probably wasn’t the case). Why is this important? It’s important because there’s a tendency to conclude that the sole reason employers comply with federal safety standards is due to a fear of being inspected and fined by OSHA—but that’s absolutely not the case for most employers. If you were to ask the average EHS professional what they worried about most with OSHA, it would likely not be a fear of the inspection itself or of being fined, rather it’s a fear of being unable to easily and quickly locate proof of compliance like inspection records, training records and 300 logs among other important records, something that at its core, is a contributing factor to the stagnancy of the top ten list (and which we’ll get more into later).

As far as not being worried about fines, some may argue that EHS professionals aren’t worried about fines because they aren’t responsible for their employer’s financials but that argument is really a non-starter, especially for any EHS professional whose employer conflates their continued employment with things like injury counts and inspection outcomes.

One would think the possibility of being penalized a max amount ranging from $16,991 for serious and other than serious violations to $169,908 for willful or repeated violations would be a big motivator but for a lot of employers, it’s simply not something they worry much about.

The reason for this goes back to two things:

1) having a less than 1% chance of being inspected 

2) the possibility of having penalties reduced simply by asking.

As surprising as it may seem, many companies given proposed penalties by OSHA end up paying much less than the original penalty amounts. OSHA discusses all the possible reduction factors in Chapter 6 of their Field Operations Manual which includes reductions for employer size, how quickly violations are fixed, good faith efforts, a company’s past history, partial abatements, etc. It’s entirely possible that a small company which has never been inspected and has therefore never been fined could have penalties reduced by as much as 80% under certain circumstances—something you’d never see happen after an environmental agency inspection, which is a discussion for another day.

So, if it’s not OSHA’s general presence or a fear of penalties for compliance failures, what’s the reason for fewer workplace fatalities, injuries and illnesses?

It’s a lot of things like a change in cultural norms where workers have come to expect and demand safe working conditions, technology improvements making things safer to operate and an acknowledgement of the link between safety and increased productivity, all things that really cannot continue to spark a desire for further improvement if we don’t figure out how to get past the safety plateau we’ve been stuck on for the better part of a decade. The safety plateau we’re referring to is showcased every fall when OSHA’s top 10 list is published, a list that reveals a continued struggle to move past things that at this point should not still be troublesome for most employers.

However, because they still seem to be a roadblock for so many employers, we’ve decided to offer some help for those employers really struggling to get a handle on these things. Over the next few months we’ll be introducing a series of ten articles, one for each of the standards on OSHA’s top ten list. Each article will focus on addressing just the parts of that standard employers seem to struggle with the most, provide our best suggestions for how employers can achieve compliance and may even include free resources to make compliance much easier.

We’ll start the series off at the bottom of the annual top ten list with a discussion about Machine Guarding, touching on the five specific sections of 29 CFR 1910.212 which seem to put so many employers on the struggle bus every year: