It's not often that you hear terms such as, "conspiracy" applied to OSHA, especially by workers' comp experts. But that's exactly what some are saying about the agency's apparent stepped up enforcement actions.

A recent policy paper released "coincidentally" nearly the exact same time as that nasty series of reports by ProPublica/NPR has left many a stakeholder questioning whether OSHA is intentionally trying to harass the industry.

During a recent webinar hosted by Mark Walls and Kimberly George (part of a terrific series called "Out Front Ideas with Kimberly and Mark"), Mark Sullivan, senior consultant at Aon Risk Solutions, and attorney Melissa A. Bailey, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., talked about OSHA. As proof of OSHA's apparent willingness to do nearly anything and everything to get employers to keep their workers safe, the speakers referred to a memo-news release issued by David Michaels several months after his 2010 appointment to head OSHA in which he promised to "shame" employers into doing the right thing. (Really – what are we, 12?)

What Michaels wrote at the time was that some employers allow hazards to exist in their workplaces because "they recognize that it is not in their financial interest to abate serious hazards." With the likelihood of an inspection "low," and fines "inconsequential," Michaels said "regulation by shaming may be the most effective means for OSHA to encourage elimination of life-threatening hazards and we will not hesitate to publicize the names of violators, especially when their actions place the safety and health of workers in danger." He promised more "hard hitting" press releases to better explain why the agency cited a specific employer.

Apparently, OSHA believes cutbacks in statutory benefits in workers' comp have undermined the "incentives" for employers to try and keep their workers free of injuries. The fact that safer workplaces equate to employers forking out less money for things like workers' comp, health care, absenteeism, etc., apparently eludes many employers, or so the agency believes.

One of the problems with this strategy is that it doesn't account for employers who may have been caught up and have not really done anything wrong.

Now, clearly not all employers do the right thing. We know of many who take all sorts of steps to ignore protections for their workers – misclassifying them is a biggie, of course. And, no, employers generally don't want to dole out what they feel are excessive sums of money on protective equipment and procedures for which they have no proof of ROI.

But I think most employers want to do the right thing and will take steps to get there. Then again, I naively believe most people are inherently good.

Anyway, the speakers made an excellent case for their belief that OSHA is going full tilt on this "shaming" strategy and even stepping it up a bit. Hence, the recent white paper. Melissa said she's been in the field for a long time and has never seen OSHA issue such a publication not related to a specific hazard, nor this sort of policy paper on a global issue.

The fact that it came out literally on the heels of the ProPublica/NPR reports was just a little too convenient – even for my naive brain.

As more evidence, there is the agency's upcoming change to its reporting requirements that would mandate the electronic submission of injury/illness information by some employers. The agency plans to eventually include it in a supposedly anonymous database viewable by the public. Attendees and the speakers questioned how OSHA could really keep the identities of employers anonymous. But that's what the agency says it will to do.

All sorts of consequences are possible from this increased OSHA attention. For one, employers may spend more time on lagging indicators – post-accident info, rather than leading indicators which include steps to actually prevent injuries in the first place.

There's also the fact that this effort by OSHA could be a boon to unions, giving them an unfair advantage as they try to organize in a particular establishment.

And there is the potential for contractors to lose business as their injury rates are posted, despite OSHA's promise to keep the names of employers confidential.

Why is OSHA doing this, and why now? In addition to further advancing its enforcement strategy under the current administration, there's also the possibility that OSHA is angling for a new injury/illness prevention standard that would require employers to identify and take steps to mitigate hazards.

So, what's an employer to do, faced with this potential shaming by the agency?

First, according to the speakers, establish basic safety management. The American National Standards Institute has a standard with several steps, such as:

• Management commitment to show that senior management provides direction, policy and resources for a company to have and execute a safety process.
• Get employees involved.
• Plan and include ongoing hazard assessment and prioritizing.
• Implement and operate, including the design and review of emergency procedures, safety training, etc.
• Evaluate and take corrective action, such as good incident investigations, audits and taking corrective actions based on the findings.
• Conduct management reviews to see how suitable and effective the safety management process is and whether it should be changed.

Also, if an employer gets cited and penalized by even a small fine, you might want to fight it. Evaluate the citation carefully. It's easy to pay a small fine and be done with it, but what happens the next time? You may end up with multiple violations, some or all of which are undeserved.

Finally, get a lawyer – especially if there's a good possibility you will be investigated by OSHA. If there is an accident, assume there will be an inspection.