Transcript Kotecki Waiver” Cases

OSHA BEST PRACTICES
Emergency Response Through
OSHA Inspection
May 11, 2012
ACRP GENERAL ASSEMBLY
1
Presenters
 David
Johnson, Partner,
SmithAmundsen, LLC
 Stephen
Yates, President, Optimum
Results
2
CATASTROPHIC
LOSS
PLANNING AND
RESPONSE
3
Responding to Catastrophic Loss
After it Occurs is Too Late

Prepare in advance of a catastrophic event
 Time immediately after the accident is critical
 Implementation of an immediate response
program minimizes risk
o This must be in place BEFORE the catastrophic
event occurs
4
Benefits of Effective Immediate
Response

Secure an early evaluation of the loss
o Both strengths and weaknesses

Identification and preservation of evidence
o Everyone in response team must work together
o Have clearly identified roles
o In-house counsel, in-house claims management,
technical experts, investigators, outside counsel
5
Pre-Incident Risk Analysis

Effective immediate response begins with
analysis of specific risks:
Think about “worst case scenarios”
Identify risks and hazards
Plan for how and with whom you will address risks
Duty to identify and minimize risk is ongoing
Predicting beforehand minimizes risk, and
generally reduces costs
o No plan is perfect
o
o
o
o
o
 but planning makes response more effective.
6
Pre-Incident Risk Analysis

Job-Hazard Analysis:
o A step-by-step method if risk identification related
to a particular task
 List all steps required to complete task
 Review each step to determine what healthy and
safety hazards are present
 Determine measures to eliminate or lessen effects of
those hazards

An outside inspection or audit of the health
and safety program
7
Pre-Incident Risk Analysis

Look for various control measures
o Engineering Controls
 Machine guarding, guardrails, ventilation, and raw
material substitution.
o Administrative Controls
 Job rotation and training
o Personal Protective Equipment (PPE)
 Last line of defense
8
Pre-Catastrophic Loss PreparationThe Playbook


Identify the response team
Team will include:
o
o
o
o
o


In-house: counsel, safety specialists, HR, IT
Outside counsel
Independent adjustors/investigators
Experts and specialists and
Insurer contact
Have contact information readily available
Policy considerations include:
o Media policy, response team members, record retention
policy
9
Outside Counsel

After notice of a catastrophic occurrence,
response team leader should contact rest of
team
 Outside counsel should be FIRST contacted
 Involvement of an attorney allows for free
flow of information under the cloak of
privilege with team leader.
10
Investigator/Adjustor



After counsel has been contacted, an
investigator should be dispatched to the
scene and coordinate with counsel
The investigator should have a high level of
understanding of OSHA
If it is determined that an expert is needed,
one should also be present to conduct
technical and scientific analysis
11
Company Personnel on Scene

Supervisory personnel should be present
o Usually a foreman, superintendent or project
manager

Company personnel should NOT speak with
anyone other than the company
representatives, counsel and the investigator
o If approached by law enforcement or OSHA
investigators, company personnel may need to
speak, but should first consult counsel
12
Accident Investigation

Should be performed by someone:
o Experienced in accident causation and
investigative techniques
o Work processes, procedures, and persons of a
particular situation
13
Accident Investigation






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Report the accident to a designated person
Provide first aid/medical care and prevent further
injuries
Investigate accident
Identify causes
Report findings
Develop a plan for corrective action
Implement the plan
Evaluate the effectiveness of the plan
Make changes for continuous improvement
14
Accident Investigation
Look for the Root Cause
 Example: Investigation concludes accident
due to worker carelessness and goes no
further fails to seek answers to several
important questions such as:
o Was worker distracted? If yes, why?
o Was safe work procedure being followed? If not,
why not?
o Were safety devices in order? If not, why not?
o Was the worker trained? If not, why not?
15
Accident Investigation





Task
o Safe procedures used? Change in conditions to make normal procedure
unsafe? Appropriate tools and materials available? Were the used?
Were safety devises working properly? If not, why not?
Equipment and Material
o Equipment failure? What caused it to fail? Machinery poorly designed?
Hazardous substances involved? PPE used? Users properly trained?
Environment
o Weather conditions? Housekeeping a problem? Temperature, noise,
lighting? Toxic substances present?
Personnel
o Workers experienced? Adequately trained? Physically capable? Tired?
Stressed? Health?
Management
o Safety rules communicated and understood? Written procedures and
orientation available? Procedures enforced? Adequate supervision?
Workers trained? Job hazards previously identified? Procedures
developed to overcome hazards? Unsafe conditions corrected? Regular
equipment maintenance. Inspections performed?
16
Accident Investigation
Physical Evidence
 All equipment involved must be secured
 Chain of custody and investigation protocol should
be established
 Secure evidence on scene
o Witnesses, instrumentalities, documentation

Steps to consider:
o Witness statements, photographs, testing and sampling,
drug and alcohol testing of persons involved.


This is where a pre-determined documentation
retention policy comes into play.
Limit risk and exposure.
17
Rapid Response Activity

Identify:
o
o
o
o
o
o
o
Persons inured or killed (and notify contacts)
Location of the accident-position of injured
Date/time of the accident
Eyewitnesses
Supervisory Personnel
All contractors on the site
Supervisors of the injured party
18
Rapid Response Activity

Locate:
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Warnings and safety devices on the site
Flagging, tie-offs, and barriers
Guarding and safety mechanisms
Operators’ manuals
Annual crane inspection
Daily crane inspection
Drug screen results
Lease Agreement
Load Chart used for this set up
Maintenance records
Photos and measurements of the accident
Signed Job Ticket
Contracts of all involved parties
Insurance policies and certificates--Later
19
Rapid Response Activity

Determine:
o The activities ongoing at time of accident
o What the injured party was doing at the time of the
accident
o Environmental and weather conditions
o Root cause of accident
o Nature and scope of the injury
o The owner or furnisher of tools or equipment

One should preserve evidence or document
conditions before conditions are altered by ongoing
construction
20
Rapid Response Activity

Obtain:
o Accident reports
o Police/Fire department reports, including photos, measurements,
and accident reconstruction analyses
o Jobsite progress photographs and any accident site photographs
o Any site, security, or newscast video footage
o Handwritten or recorded statements of witnesses
o OSHA investigation documents and reports—takes time
o Coroner’s records, including autopsies, toxicology reports, photos
o Tool box meeting handouts
o Safety manuals
o Safety meeting records
o Site safety plans
21
Post-Response Efforts




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Assembling all information secured and evaluate the
strengths and weaknesses of potential claims
Documenting strengths and weaknesses while the
information is fresh
If facts are favorable, you may respond to claims if
and when the claim is brought
If unfavorable, you can begin to increase reserves
and prepare an intelligent response to claims
If the claim is not resolved, then you have all the
information you will need at your disposal to defend
the claim.
22
Contacting OSHA

Reporting requirements:
o If a fatality occurs, the accident must be verbally
reported to local OSHA office or by using the
OSHA toll-free number within 8 hours of the
employee’s death.
o Must also report any incident resulting in the
hospitalization of three or more employees
23
THE OSHA INSPECTION
FROM OPENING
CONFERENCE THROUGH
NOTICE OF CONTEST
24
Before OSHA arrives

What is at stake for the employer?
o
o
o
o
o
o
o
OSHA civil liability and penalties
OSHA criminal liability and penalties
Abatement costs
Negative media attention
Disrupted employee relations
Increased insurance rates
Lost business opportunities, particularly job
bidding and contracts
25
Crackdown on Enforcement

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Under the Obama administration, OSHA has
stepped up enforcement efforts and
increased penalties
Clear that current OSHA leadership is strong
proponent of worker protections, and is using
penalties to generate revenue
Construction industry is a target
Crane industry-1926-1400-is big target
26
Crackdown on Enforcement

April 22, 2010, OSHA issued a revised
penalty policy:
o OSHA’s thought is that Increased penalties
results in greater deterrence
o Publicize citations and do not settle easily
 Threshold for publication of a violation formerly
$100,000. . . Now, it is $45,000
 Negative press can be more harmful than citation itself
o More “serious” and “willful” violations
27
Crackdown on Enforcement

Higher penalties:
o Size of penalty:
 Reduced 10-40% for employers with less than 250 employees
 No reduction if over 250 employees
o Good faith requirement:
 A 15% quick fix incentive for immediate abatement of hazardous
condition
o Repeat offenders:
 Increased time frame for repeat violations from 3 years to 5 years
o Minimum penalties:
 Serious violation penalty now $500
o Increased penalties for “egregious” violations
28
Crackdown on Enforcement

Record keeping:
o OSHA looking to stop incentive programs for
employees who do not report illness or injury
 Example: reward systems where employee receives
monetary bonus for each month/year with no reported
injury or illness.
o Unrecorded injury may be characterized as a
“willful” violation
o OSHA may also view non-payment of bonus as
retaliatory conduct by employer
29
Crackdown on Enforcement

Severe Violator Enforcement Program-2010:
o Concentrates OSHA’s enforcement efforts on employers with
a “demonstrated indifference” to safety
o “Demonstrated indifference” means history of:
 Willful violations
 Repeat violations
 Failure to abate violations
 Plus a fatality or catastrophe
o A higher emphasis industrial operations or processes
(e.g., fall protection, dust, silica, trenching)
o Prior egregious enforcement of employer
30
Crackdown on Enforcement

Consequences of SVEP: Severe violator gets
heightened scrutiny including:
o Follow up inspections at other worksites operated by the
employer countrywide
o Settlement requires increased safety obligations (e.g., hire
additional safety personnel, injury/illness reporting
obligations, self auditing requirements)
o Elimination of certain citation penalty reductions
o Requirement to report any serious violation and consent to
inspection
31
OSHA Violations

To establish a violation of an occupational
safety or health standard, OSHA must prove:
o (a) the applicability of the cited standard;
o (b) the employer’s non-compliance with the
standard’s terms;
o (c) employee access to the violative condition;
and
o (d) the employer’s actual or constructive
knowledge of the violative condition
32
OSHA Violations

Potential Citations:
o
o
o
o
o
Other than serious
Serious
Willful
Repeat
Failure to abate a hazard by OSHA’s deadline
33
Types of Violations


A serious violation requires only that the
employer “knew or should have known” of the
violation
A willful violation is committed either with
actual knowledge of the violation or with plain
indifference to the violation
34
Types of Violations


A willful violation does not result simply
because a hazardous condition “should have
been obvious”
A willful violation requires evidence of the
employer’s knowledge or indifference at the
time of the alleged violation
35
Types of Violations


Willful violations carry higher civil penaltiesup to $70,000 per citation compared with
$7,000 for a serious violation
Willful violations can result in criminal
prosecution of the employer and its individual
managers if the willful violation caused an
employee’s death
36
Types of Violations


A repeat violation results from OSHA citing
an employer for a previous substantially
similar violation
Repeat violations can be based on prior
General Duty Clause violations or specific
violations
37
Types of Violations


OSHA maintains a national online database
on which an OSHA compliance officer can,
and will, search for any violations previously
issued to an employer anywhere in the
country
A violation will be considered a repeat
violation if the violation occurred within 5
years of the final order date of the previous
violation
38
Types of Violations


Repeat violations carry penalties of up to
$70,000
To an uninformed employer, what may seem
like a harmless “serious” or “other than
serious” violation, with a nominal or no
monetary penalty, may lay the foundation for
a subsequent repeat violation—SO
BEWARE
39
Criminal Liability

There is potential criminal liability if:
o A violation of a specific regulation
o The violation was willful, and
o The violation caused an employee’s death
40
Criminal Liability

Penalty:
o 6 months imprisonment, and/or
o $500,000 fine per fatality for corporation
o $250,000 fine per fatality for individual
NO MIRANDA WARNINGS DURING AN
OSHA INSPECTION!
41
Criminal Liability

Other criminal liability can result from:
o Obstruction of justice for interfering with OSHA
inspection
o Falsification of records
o Lying to a compliance officer
TELL THE TRUTH
42
The Opening Conference

When OSHA arrives:
o Be courteous
o Show compliance officer to a conference room or
empty office
o Notify designated point person
o Point person takes control of the inspection and is
responsible for all communications with
compliance officer and sticks to him throughout
inspection
43
The Opening Conference


Company representative and union
representative (if applicable) should attend
the opening conference
Compliance officer will give reason for
inspection
o Accident, complaint, referral, general inspection,
programmed

This is where management strategy becomes
crucial
44
The Opening Conference

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If reason for OSHA inspection is an accidentshow concern for worker safety and promote it
First impression on OSHA is important
All employees should have knowledge of the
safety program
All employees should know what a competent
person is
If reason for OSHA inspection is an employee
complaint, ask to see complaint
45
The OSHA Inspection



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The inspection may be inevitable, but a
citation might not be
Must manage the inspection process as
effectively as possible
OSHA is there to get the facts, not help you
Be informed of your rights and prepare your
employees
Be cordial but cautious, and always
remember OSHA’s objective
46
The OSHA Inspection

Consent:
o Employer has a right to request a warrant before inspection




Not always advisable to do so
May increase the compliance officer’s suspicions
May increase future inspections
May put you on OSHA’s “radar”
o Plain View Doctrine:
 When worksite is visible from a public area, an OSHA compliance
officer has the right to photograph and observe from that location
o Consent may be given by any management official including a
foreman or superintendent
 Make sure employees are aware of this
o On a multi-employer worksite, consent comes from site
“controller”
 Usually owner, developer, or general contractor
47
The OSHA Inspection

In deciding whether to allow the inspection
based on an accident, management should
consider the following matters:
o Did the accident in fact occur involving the
employer
o Is the accident scene still in existence or have the
conditions changed
o If fatality-site frozen until OSHA commences its
inspection unless doing so creates a hazard to
employees
48
The OSHA Inspection

In deciding whether to allow the inspection
based on an employee complaint,
management should consider the following
matters:
o Is the complaint valid?
o Does it identify the correct workplace, employer
or equipment
o Does it identify a hazard which in fact exists at
the worksite
49
The “Walk Around”

NEVER allow an OSHA compliance officer to
walk the worksite unattended
 Company and Union representatives have
right to accompany the compliance officer
 Take parallel videos, photos, samples, notes
and measurements
o Do not rely on or expect OSHA to share its
findings with you
50
The “Walk Around”

Control of the scope of the inspection
o Where will the inspector be permitted to go at the worksite
o What operations will the inspector be allowed to observe
o If employer allows the inspector broader access than to
evaluate the accident or complaint, the employer is subject to
citations for anything that the inspector observes because the
employer voluntarily consented to a broader inspection
o Whatever the inspector observes during the walk around that
is in plain view is subject to citation
o Communicate scope to inspector to reach an informal
agreement regarding the scope of the inspection before the
inspection begins
51
Multi-Employer Worksites

Liability was expanded under Multi-Employer
Workplace Doctrine
 Each employer is potentially responsible for
the safety and health of another employer’s
employee if the employer:
 -Creates the hazard
 -Exposes an employee to the hazard
 -Is responsible for correcting the hazard, or
 -Is the controlling employer on the worksite
52
OSHA Document Requests


Insist that requests for documents be made to a
single source and in writing
Considerations include:
o Are the documents produced responsive to OSHA’s
requests?
o Don’t give OSHA something they haven’t asked for
o Is it privileged?


Always keep a copy of what’s sent to OSHA
Never allow the compliance officer unfettered
access to documents
53
Employee Interviews

Any “supervisory” employee may be interviewed by OSHA
o Any foreman, crew leader, lead man, or other employee
considered “in charge”
o Applies even if person is in a union


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Employer’s Counsel may be present during management
employees’ interviews
Union or hourly employee may be interviewed privately (or with
steward) if they consent
What is said can be used as evidence
TELL THE TRUTH!—Lying to OSHA is a CRIME!
o Can be charged with felony for obstructing a federal
investigation
o Can do prison time!!!!
54
Employee Interviews

Employees’ Rights:
o Right to a private 1 on 1 interview with compliance officerconfidential-no retaliation-no disclosure
o Right to refuse to be interviewed by compliance officer—emotionalfearful-intimidated/manipulated to expose them to liability-if refuse—
subpoena—then employee full scope of rights-legal counsel
o If consent-right to have person of their choice to attend-if
compliance officer refuses to allow-decline interview—without
reason
o Right to end interview and leave at any time-without reason
o Right to refuse to be recorded, photographed, or sign statement
55
Employee Interviews

Hourly employee’s right to legal counsel
o Right to have person of choice present-so legal
counsel would qualify
o Right to be represented in judicial and
administrative proceedings
o Employer has obligation to defend employees
when faced with liability for acts which occurred
within the course of their employment
o Potential criminal liability for fatality or multiple
injuries—right against self incrimination
56
Employee Interviews

OSHA’s objections to employer’s legal
counsel representing an hourly employee
during OSHA interview:
o Employer’s attorney-conflict of interest-not
OSHA’s right to object to conflict of interest-right
of employee to accept as long as disclosure and
knowing waiver of conflict
o Employee exposure to retaliation for what is said
in presence of employer’s attorney—but
employee protected from retaliation by Act
57
Employee Interviews

OSHA’s rights:
o Right to interview the employee in private if
employee consents
o Right to have truthful responses to questions
58
Employee Interviews

Employer’s rights:
o Right to participate in non-private employee
interviews and, if the compliance officer refuses,
require that the interviews occur on non-paid
work time
o Right to end interviews if disruptive, unreasonably
interfere with ongoing work or become
confrontational
59
Closing Conference




Negotiation starts here
OSHA knows what’s going on-interviews, walk around,
documents
Can be in person or over the telephone
Obtain as much information from compliance officer as
possible:
o What citations will be recommended
o How will each be classified
o What should company do going forward
o What abatement should be done, and how
o Basis for each citation
60
Closing Conference


Clarify any misunderstandings of fact
DO NOT:
o
o
o
o
o
make admissions;
argue;
get angry;
insult the compliance officer or OSHA; or
discuss the financial situation of your company,
the economy, or the government
61
Issuance of Citations

Citations arrive by way of certified mail and
are tracked by OSHA
 Citations must be received within 6 months of
inspection or they are stale and can be easily
defeated
 Citations will reference standard(s) violated,
set out proposed penalties, and outline your
rights
 Act on Citations IMMEDIATELY
62
Issuance of Citations

Review Citation(s):
o Factual Errors
-Is the Citation’s Alleged Violation Description (AVD) correct?
-Did the alleged violation actually occur
o Legal Errors
-Does the specific regulation apply to the hazard?
-Does another regulation apply?
-Is there an exemption within the regulation?
-Is the General Duty Clause inapplicable (i.e., does a specific
regulation apply to the hazard)
63
Issuance of Citations


Interview company witnesses involved in the
alleged violation to confirm the facts
Review employer documentation of:
-Applicable safety or health program for the
hazard
-Employee training
-Employer discipline for prior violations of the
safety and health program
64
Issuance of Citations


Have 15 working days (exclusive of federal
holidays) from receipt of citation to file a
written Notice of Contest
Failure to file Notice of Contest within 15
working days of receipt of a citation precludes
any challenge to any part of the citation
CONTEST PERIOD CANNOT BE
EXTENDED
65
Informal Conference




OSHA encourages the informal conference and it
should be pursued
A potential means for resolution without litigation or
appeal
Allows employer to gain understanding of exactly
what OSHA expects
Occasionally, settlement terms may be favorable to
employer if citation remains as issued
o Be creative with settlement terms: e.g., provide additional
training
66
Informal Conference




Schedule Informal Conference at the same time
Notice of Contest is filed
Prepare employer representatives for their roles
Assemble documents for production at Informal
Conference
Prepare employer’s position regarding citations
o Vacate, amend, reduce classification, reduce penalty,
modify abatement date
67
Informal Conference

At Informal Conference
o Explain employer’s commitment to safety and
health

Discuss employer’s concern about accepting
citations that are not factually or legally
correct because of future liability for repeat or
willful violations
68
Informal Conference







Articulate employer factual and legal defenses
Do not make admissions of violations during the Informal
Conference
Request that citations be vacated, amended, etc., as appropriate
Consider OSHA’s response to company’s proposal
Does OSHA’s proposal expose company to future repeat or
willful violations
Confirm with OSHA employer’s abatement obligations
If reach settlement, carefully review Informal Settlement
Agreement to confirm that it reflects agreed upon terms
69
Informal Conference




If no settlement, prepare written Notice of Contest
and file within the fifteen working day period if not
already done
Post Notice of Contest at worksite
Employer will be contacted by OSHA Solicitor,
attorney representing the agency, within several
weeks to discuss settlement
If not done already, consider retaining attorney who
is experienced in OSHA law to advise employer
70
Notice of Contest
To Contest…Or Not To Contest

Consider:
o Nature of violation
 Repeat? Willful? Severe?
o Proposed penalties
o Cost to contest
o Cost of abatement
 If prohibitively costly and delays completion of work, may
not want to challenge
o Whether employer believes citation is proper or not
 Improper standard applied, violation did not occur,
regulation inapplicable etc.
71
Notice of Contest


After the complaint and answer are filed,
case goes to OSHRC (Review Commission)
Majority of cases settle before going to
hearing
72
Questions?
73