The Safety Hit List Five hundred Virginia companies with high illness and injury rates face state inspections, but both regulators and businesses want a better way to enforce on-the-job safety.

High penalties for unsafe work sites can be severe - up to $70,000, says Charles E. Lahey III with the state Department of Labor and Industry. Those numbers get businesses' attention.

By Robert Burke
When it comes to safety, Charles Rehnborg thinks he has done a pretty good job. Four years ago, when he and a partner bought two nursing homes in Amherst County and Lynchburg, workers' compensation premiums were $34,000 a year. Today, with better safety equipment and training, they've reduced the number of injuries and cut their premiums by more than a third.

But based on 1997 numbers, Rehn-borg's Amherst-based nursing home, The Briarwood, drew attention from the state's Department of Labor and Industry. The department, which enforces federal and state workplace safety laws, warned Rehnborg in a letter that The Briarwood was among 500 companies targeted for inspections and possible fines because of injuries and illnesses resulting in lost-work days.

"I'm furious about that," Rehnborg says. "It makes no sense whatsoever." He says state inspectors ignored his improved safety record — he had no lost-time accidents last year. What's more, he says the state unfairly compares his industry to less hazardous ones. "I don't think that seven accidents for the entire year is bad, especially when you're providing 24-hour nursing care [for] 51 residents," he says. "They're comparing us to Bob's Bakery and the 7-Eleven."

Rehnborg's nursing home was one of 500 initiates in a new state program to cut the number of worker injuries and illnesses by going after companies with poor safety records. That seems like common sense, but only recently has the state had access to computer-sorted data that identifies problem work sites. Before, companies were inspected for other reasons — if there was a serious accident or when someone filed a complaint. Some-times companies were inspected simply because they were in a hazardous industry, regardless of their safety record.

Rehnborg's frustration over being targeted because of old data, though, is a common one. A number of companies have forwarded 1998 and 1999 data to show that their performance is fine, says Charles E. Lahey III, the department's former deputy commissioner. "Of course, we have to pick a year that we have data for."

The state inspection program has other shortcomings, too. For starters, it doesn't target the most dangerous industry, construction, because those work sites come and go. By the time the safety data is assembled, construction is complete and the company has moved to another project. Another problem is that the state's 59 inspectors won't even be able to visit all 500 work sites identified as having high accident rates. They expect to reach no more than 300 this year. The department inspects 2,000 sites annually: Half are construction sites. Inspectors also review serious accidents, complaints and sites referred by other officials, such as local building inspectors or health regulators. Also, the state hit list doesn't include companies with fewer than 50 employees, even though smaller operations often have the biggest safety problems.

Virginia workplace safety reports carry mixed news: In 1997 — the most recent data available — Virginia averaged 6.5 cases of injury or illness per 100 workers, which is below the nationwide rate of 7.1 per 100. The 1998 data is due out this month. The bad news, however, is that more people are dying at work — 176 last year, 6 percent higher than in 1997 and continuing a steady increase from 132 deaths in 1995.

Still, Rehnborg calls the state's approach an unnecessary intrusion. "It's government trying to help the poor, stupid business person do their job," he says. "When I'm looking at workers' compensation rates of $22,000 a year, I don't need government to motivate me."

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State regulators say their new hit list is a fallback from what they thought was a better plan: the Virginia Compliance Alternative Partnership. It would have used the threat of an inspection to pressure companies to "voluntarily" develop health and safety programs.

Under that plan, the department would have assembled its list of unsafe workplaces and sent letters with punch: Develop a health and safety program or face inspection. Lahey expects virtually all companies would have agreed. "We'd be able to get companies to put in programs on their own, without us doing anything except maybe spot-checking." The state could have targeted more businesses and invested time in prevention rather than lengthy on-site reviews.

he state began a pilot program but abandoned it in the spring after a U.S. Chamber of Commerce lawsuit blocked the Occupational Safety and Health Administration program it was modeled after. The suit said OSHA was, in effect, requiring businesses to implement safety and health programs that were supposed to be voluntary. If OSHA wanted to establish that new rule, it should subject the program to the standard public notice and comment period, the plaintiffs said. In April, a federal court in Washington, D.C., agreed.

When that decision was announced, the state and industry groups were working out the details of Virginia's program, Lahey says. But after that ruling, the Virginia Chamber of Commerce and other groups withdrew their support. In May, the state agency shelved the program. Industry groups thought that, given the federal court ruling, "we were perhaps spinning our wheels," says Keith Cheatham, public policy manager for the Virginia chamber. "All it would take is one company in Virginia who was targeted and objected to the program to initiate a similar suit" here, he says.

Losing the program was a setback, Lahey says, because companies now have less motivation to act. The 500 letters that went out in September encourage recipients to clean up their act and offer the department's help. "We don't know whether they will do anything or not," he says. Lahey says OSHA sent 12,500 similar letters and heard back from less than 1 percent.

Others think a warning letter is enough. The trigger for getting on the inspection list is a rate of 6 or more injuries or illnesses resulting in lost work days per 100 workers. The state average is 2.9 per 100 workers. "Grade school math will tell you you're in the target zone," says Robert Kyle, vice president of the Virginia Manufacturers Association. "You darn well ought to know when your number's up."

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The Virginia Department of Labor and Industry is trying another approach. It plans to develop industry-specific safety programs through associations or groups of companies, Lahey says, because comparable companies tend to have similar safety issues.

Once these businesses agree to such a plan, state inspectors could give participants a break during inspections on everything except the most serious violations. Lahey says the program would be modeled after an OSHA initiative in Denver that relies primarily on warnings instead of fines. Cheatham says the group approach makes sense. "We're just as thrilled as we can be that the department philosophically is more interested in compliance and safe working places than in fining people."

Kyle also favors focusing attention on problem companies, and he's glad the state now has site-specific data that triggers inspections. With the new data, the state can cut back on random inspections. "That's where a lot of the resentment comes from," Kyle says.

here is still resentment, though. People like Rehnborg want a break for being able to show that they've improved their safety records. Lahey acknowledges that inspecting companies based on what they did two years ago is bound to cause problems, but it's the best data the state has. OSHA requires companies in particularly hazardous industries, such as trucking, to keep records of injuries and illnesses and turn them in each February for the previous year. It then takes 14 months before the state labor department gets the numbers.

Rehnborg, the new chairman of the Virginia Health Care Association, says the state's biggest mistake is in comparing apples to oranges. He wants his nursing home compared with other long-term care facilities, not with retail and office environments. His association is likely to sign up for the industry-specific safety coalitions, although Rehnborg calls them "voluntary at gunpoint."

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The state's nursing home industry is having serious safety problems. There are 110 nursing homes, health care centers and convalescent homes among the 500 work sites targeted.

Residents need higher levels of care than ever before, and it is being provided by underpaid, inexperienced nurse's aides, according to Steve Morrisette, president of the Virginia Health Care Association. Morrisette says this problem is caused by Virginia's low Medicaid reimbursement rate, which covers 70 percent of nursing home residents in Virginia. Nursing home owners can't pay enough to retain employees in a tight labor market, and new workers make more mistakes.

"If you're a really great [certified nurse's aide] you might get up to $8 an hour. We're just not competitive," Morrisette says. Nursing home administrators on the Eastern Shore told him recently that they're losing workers to a local chicken plant. "We actually pay more to process chickens than we do to take care of people."

he most dangerous place to work in Virginia, though, is on the road. In 1998, for the seventh straight year, transportation accidents killed the most workers — 75, up nine from 1997. Of those, 26 were truck drivers. Despite the high numbers, however, many transportation workers aren't taking proper precautions. In accidents in which seat belt use was determined, 64 percent of victims were not buckled up.

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Inspections are time-consuming. Representatives from the labor department come to the work site, interview employees and their supervisors, and check whether safety procedures exist and are being followed.

Penalties for serious violations can get a business's attention. For violations in which the employer knew of a serious hazard and took no action, the penalty can be severe — $70,000 in some cases. "That sort of thing does make some people nervous," Lahey says. Inspectors have the discretion of reducing fines for smaller companies, those with no violations for three years and for "good faith" — if an employer is clearly trying to run a safe workplace. Following most citations, the company and the department work out an agreement on the violations and the fines.

But Lahey says an increasing number of companies are challenging the citations in court. That's partly because the department is taking a tougher stance, Lahey says. It used to give companies a 50 percent reduction in fines for just cooperating, and it often settled cases before trial.

he first round of hit-list inspections, based on 1997 data, were to begin in October. Those companies with the worst records were to be the first to hear from state regulators, who were to work down the list at least until next spring, when the 1998 data will produce a new group of prime suspects. That list could be even longer, because it will include companies with as few as 40 employees, 10 fewer than the current cutoff.

In the meantime, Rehnborg promises to press for reform. He wants the General Assembly to change how the department determines which work sites are unsafe. "I think the Virginia Health Care Associa-tion will be very actively pursuing policy changes to where we can get a more level comparison," he says. "We're going to have to get pro-business legislators behind us."