“Nor should participation trophies be offered for simply showing up.”  — Kevin Dickenson

OSHA is fond of pointing out that the Process Safety Management Standard, 29 CFR-1910.119 (PSM), is a performance-based standard.  While they generally avoid telling us how to comply with standard, they expect us to comply with standard, nonetheless.  There is no prize for trying.

Employee Participation

There are no participation prizes in PSM, but OSHA does expect employee participation. In fact, it is the first of the fourteen elements of PSM. So, what does that mean?

It’s always helpful to look at the language of the standard itself, rather than to rely on what others have to say about the standard.  It’s easy enough to look at www.OSHA.gov. One gets to the regulations by using the “Standards” drop-down, then clicking on “Laws and Regulations”. The PSM Standard is a General Industry regulation.

To save the trouble, though, here is paragraph (c) of the PSM Standard, about employee participation.  It’s pretty simple—it only has three items:

(1) Employers shall develop a written plan of action regarding the implementation of the employee participation required by this paragraph.

(2) Employers shall consult with employees and their representatives on the conduct and development of process hazards analyses and on the development of the other elements of process safety management in this standard.

(3) Employers shall provide to employees and their representatives access to process hazard analyses and to all other information required to be developed under this standard.

That’s it:  a written plan, consult with employees, and provide access to information. Yet many employers with PSM-covered processes still manage to get cited for failing to comply with this requirement.

Why?

A Written Plan

The employee participation plan must address all of the requirement of the paragraph. Too many who are responsible for PSM-covered processes seize on the requirement that they should “consult with employees … on the conduct and development of process hazards analyses” and figure that as long as they state in their PHA Procedure that an operator should be present in all PHAs, they’ve done what they’re supposed to do.

Some inspectors may let that slide, but generally, a statement in a PHA Procedure is not a substitute for a written Employee Participation plan. Even if that was all the standard required.

What does the standard require that needs to be addressed in a written Employee Participation plan? It requires that employers consult with employees and it requires that employers provide access to information.

Consult with Employees

The only element of PSM that the standard specifically mentions in Employee Participation is Process Hazard Analysis. Later in the standard, in the element on Training, the regulation also calls for the employer, “in consultation with the employees involved in operating the process,” to determine the appropriate frequency of refresher training. Refresher training cannot be less than once every 3 years, but employers need to be able to show that they checked with employees to decide if it needs to be more often.  Honestly, I don’t know many operators who want to sit through refresher training any more often than necessary, but still they need to be consulted.

Other than Process Hazard Analysis and Training, though, no other elements are specifically called out. So, it is understandable that some conclude that the “consulting” requirement is satisfied by having an operator present at PHAs and showing that the frequency of refresher training has been checked.  But that is not enough.

After the second item of the Employee Participation paragraph mentions “the conduct and development of process hazards analyses”, it goes on to add “and on the development of the other elements of process safety management in this standard.” There are fourteen elements, and the standard requires that employees be consulted on the development of all fourteen of them.  Not some of them.  All fourteen.

Further, the standard does not say that employees should participate in all fourteen elements.  It says that employers should “consult…on the conduct and development…” Assuring that employees receive the mandated training in the standard, is not the same as consulting with them on the conduct and development of the elements of PSM.

One other thing. The standard does not limit this consulting to employees.  It also says “and their representatives.”  Who is an employee’s representative? Union officials and attorneys come immediately to mind. An employer does not get to decide who an employee’s representative is. I have never met an attorney or a union official who was remotely interested in participating in a PHA or any of the other 14 elements, but that doesn’t mean that employees can be denied the opportunity to have them participate.

Provide Access to Safety Information

The third item of the paragraph on Employee Participation is to provide access to the information developed as part of a PSM program. Not just the PHAs, but all of the information developed as part of a PSM program. And “provide” is an active verb. It is hard to argue that access has been provided to information that employees don’t even know exists.

Also, this item, like the second item, includes employees AND THEIR REPRESENTATIVES. Wait? What? People who don’t even work for the company get access to PHAs and the P&IDs that support them? Yep. It’s probably a small comfort that while the fourteenth element, on Trade Secrets, affirms the requirement to provide this access, it also allows for employers to require “the persons to whom the information is made available … to enter into confidentiality agreements not to disclose the information.”

Aren’t I an Employee?

The language of OSHA’s letters of interpretation makes it clear that OSHA considers engineers as a category separate from operating employees, maintenance employees, and contractor employees. It was once put to me like this: hourly workers are employees, while engineers, supervisors, and managers are employer’s representative.

In short, it doesn’t matter what it says on your paycheck; if you aren’t hourly, you aren’t an employee for the purposes of Employee Participation under PSM.

Call to Action

Anyone responsible for complying with the PSM Standard should take another look at their Employee Participation plan.  If there isn’t a written plan, they should write one.  They should make sure that it addresses all fourteen elements of PSM, not just PHAs and refresher training.  Then they should make sure that it addresses how they will go about consulting with employees in each of those fourteen elements, not just how employees participate in each of the elements.  Finally, they should be sure that their plan addresses how access to all this PSM information they have worked so hard to develop is going to be provided to employees and their representatives.

Sure, it’s simple. That doesn’t mean that it’s easy. The prize? When employee participation is done right, everyone benefits from a safer process.