What’s Up with KYOSH?


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Jami Arnold

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Are you aware of what’s been going on with the Kentucky Occupational Safety and Health (KYOSH) Program? Here’s an update with some facts to dissuade some of the rumors. The Federal Occupational Safety and Health Administration (OSHA) has received multiple complaints regarding Kentucky’s OSH investigations of workplace fatalities. OSHA reviewed the complaints and completed a comprehensive audit in 2017 and a follow-up audit in 2018 to track Kentucky’s progress and assess any new deficiencies. OSHA assessed Kentucky’s overall State Plan with specific focus on 44 fatality cases. OSHA provided remarks in the Federal Annual Monitoring Evaluation (FAME) Report. The 2017 report revealed deficiencies in both divisions of Kentucky’s Occupational Safety and Health Program. KYOSH is the compliance division, and the education/training and consultation division has been rebranded as KYSAFE. OSHA’s findings included improper handling of non-formal complaints, failure to conduct programmed health inspections, deficiencies in methods Kentucky used to conduct fatality investigations, inadequate training and staffing, lack or insufficient documentation, failure to accept electronic complaints, high lapse times, and issues with KYOSH’s consultation program.

Since then, KYOSH has been under media scrutiny, policy changes, and significant turnover. In response, Governor Bevin appointed new leadership, re-organized the agency, and abolished the OSH Standards Board, transferring all power to promulgate regulations to the Labor Secretary. While this move is not unlike other cabinets, it has become a source of contention between the political parties this election year.  The 2018 report credited Kentucky for implementing corrective actions and being responsive to the findings and recommendations outlined in the 2017 report. This positive change was attributed to Governor Bevin’s newly appointed leadership team in the Department of Workplace Standards and both Divisions of KYOSH.

KYOSH didn’t get off completely unscathed. The 2018 audit revealed the same finding as the previous year… “investigations were inadequate, and statements were essentially non-existent.”    In the wake of these reports, you can bet that KYOSH will be closely monitoring workplace fatalities and OSHA will be right there watching to see how investigations are conducted.

In addition, OSHA found Kentucky was two years past the federal requirement to increase its penalty structure, as of December 2018. In 2015, Congress passed legislation to increase penalties (unchanged since 1990) by 78% with annual adjustments for inflation.

Violations                                    KY Penalties          OSHA Penalties*

Serious/Other Than Serious           $7,000                        $13,260

Willful or Repeat                                $70,000                     $132,598

*The federal penalties adjusted annually for inflation.

What does that mean to you? Penalties will inevitably go up one way or the other. Although penalties in Kentucky have historically been modest, State Plans are required to raise penalties to at least the federal amounts. If the Kentucky legislature does not vote to increase the penalties to federal standards, OSHA could step in and take concurrent jurisdiction to enforce federal requirements.

Jami Arnold is a health and safety consultant at Smith Management Group. Jami can be reached at jamia@smithmanage.com .