Transcript Slide 1

What To Expect From OSHA In 2010
Mark A. Lies II
131 S. Dearborn Street, Suite 2400
Chicago, IL 60603
[email protected]
(312) 460-5877
Program Objectives
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Discuss OSHA enforcement initiatives and trends.
What to expect with a new administration.
New penalty and liability policies.
How to reduce the risk of OSHA citations.
How to manage an OSHA inspection.
2 | © 2010 Seyfarth Shaw LLP
Many Different Categories of
Employers and Employees On-Site
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Owner
Owner’s Representative
General Contractor
Subcontractors
Leased Employees
Borrowed Employees
Safety Consultants
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OSHA Liability
• Initially, employer responsible for its own employees
• Employer had to ensure that its employees were protected
against:
►“Recognized Hazards” To Employee Safety and Health (General Duty
Clause)
►Hazards Identified In Specific Regulations
(29 CFR 1926, e.g. falls, electrical, lead, silica, etc.)
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OSHA Liability
• Liability was expanded under “Multi-Employer Workplace
Doctrine”
• Now, 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 to correct the hazard, or
►Is the controlling Employer on the site
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Aggressive Enforcement
• Use of interpreters
• Emphasis on repeat citations
• Requests for Root Cause analysis and company insurance
audits
• Cautionary tale: Use of knowledge of previous inspection to
justify willful citation
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Aggressive Enforcement
• Employee by Employee Citations
►PPE Standard
►LOTO procedures
• Enhanced Use of General Duty Clause
►Combustible Dust
►Workplace Violence
►New chemicals (not listed on Z tables)
• Enhanced Use of NFPA
►654 Combustible Dust
►70E National Consensus Standard-Electrical Safe Work Practices
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OSHA Recordkeeping
• September 30, 2009 – National Emphasis Program (NEP) –
OSHA Directive Number 09-08 (CPL 02)
• Intended to identify varying degrees of under-recording of
workplace injuries and illnesses on OSHA Form 300
(29 CFR § 1904)
• Target – low rate employer establishments operating in
historically high rate industries
• Establishments with 40 or more employees in select industries
that have reported a Days Away, Restricted, or Transferred
(DART) rate from 0.0 to 4.2 in 2007 will be targeted
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OSHA Recordkeeping
•NEP Target Industries
Industry
NAICS
2007 DART
Animal (except poultry) slaughtering
311611
8.1
Scheduled passenger air transportations
481111
8.1
Steel foundries (except investment)
331513
7.9
Other nonferrous foundries (except die-casting)
331528
7.6
Concrete pipe manufacturing
327332
7.5
Soft drink manufacturing
312111
7.3
Couriers
492110
7.3
Manufactured home (mobile home) manufacturing
321991
7.1
Rolling mill machinery and equipment manufacturing
333516
7.1
Poultry Processing
311615
Cleaning and Sanitation Associated with Meat/Poultry
Processing
230000
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OSHA Recordkeeping
NEP Target Industries
Industry
NAICS
2007 DART
Iron foundries
331511
6.7
Nursing care facilities
623110
6.2
Fluid milk manufacturing
311511
6.1
Seafood canning
311711
6.1
Marine cargo handling
488320
6.1
Copper foundries (except die-casting)
331525
6.0
Bottled water manufacturing
312112
5.9
Refrigerated warehousing and storage
493120
5.9
Motor vehicle seating and interior trim manufacturing
336360
5.8
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OSHA Recordkeeping
NEP Impact on Other Industries
• OSHA inspectors receive intensive training on recordkeeping.
• OSHA will inspect OSHA 300 Logs in every inspection.
• Increased recordkeeping citations with enhanced penalties.
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OSHA Recordkeeping Inspection
• A compliance safety and health officer (CSHO) will select a
group of employees whose records will be reviewed.
• For establishments with fewer than 100 employees, all
records will be reviewed.
• For establishments with 101-250 employees, a representative
sample of 50 percent of employee records will be reviewed.
• For establishments with over 250 employees, a representative
sample of 33 percent of employee records will be reviewed.
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OSHA Recordkeeping
Scope of NEP Document Inspection
• 2007 & 2008 records
• OSHA Forms 300, 300A and 301
• Medical records
• Worker’s compensation records
• Insurance records
• Payroll/absentee records
• Company safety incident reports
• Company first aid logs
• Alternate duty rosters
• Disciplinary records relating to injuries and illness
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OSHA Recordkeeping
Scope of NEP Inspection
• Interviews of designated recordkeeper, employees,
management, first aid providers and healthcare professionals.
• Limited walk around inspection of main plant operations area.
• Possible expansion of scope of inspection or referral for
inspection to other plant areas that may pose risks.
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OSHA Recordkeeping
Civil
• Potential citations for under reporting or other errors
►Other than serious
►Serious
►Willful
►Repeat
►Failure to Abate
►Egregious (violation-by-violation citation)
Criminal
• Liability of Employer
• Liability of Management Representative for false
certification
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OSHA Recordkeeping
Analysis of Employer Incentive Programs
• Evaluate policy.
• Does it encourage employees to underreport in exchange for prizes or
other rewards.
• Conduct employee interviews focused on whether employees have been
trained to report injuries or illnesses or discouraged to report.
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Protecting America’s Workers Act
• First Introduced in 2005. Introduced in 2009.
• Increased protection for whistleblowers.
• Changes to civil penalty structure
►Willful violation min. $50K up to $100K, can go up to $250K
►Prohibits “unclassified” citations.
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Criminal Law Liability
OSHA
• Potential liability if:
►Fatality
►Violation of specific regulation
►Violation was willful, and
►Violation caused fatality
• Penalty
►6 months imprisonment, and/or
►$500,000 fine per fatality for corporation
►$250,000 fine per fatality for individual
NOTE: No Miranda Warnings Necessary
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Criminal Law Liability
OSHA
• Obstruction of justice for interfering with inspection
• Falsification of records
• Lying to federal inspector
• Misrepresentation of subcontractor status to avoid OSHA
liability
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Protecting America’s Workers Act
• Criminal Sanctions
►Amputation, disfigurement, loss of brain capacity.
►Changes crime from misdemeanor to felony (min. one year jail time).
►Subject to federal sentencing guidelines for imprisonment as well as
monetary penalties.
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Whistleblower Laws
• Potential Employer Liability If:
► Employee engages in “Protected Activity” (e.g., makes complaint about safety
or health violation to Employer; files complaint with OSHA; participates in
OSHA inspection), and
► Employee Suffers “Adverse Action” (e.g., termination, discipline, loss of
benefits), and
► Employer takes Adverse Action and Retaliates against Employee because of
Protected Activity
► Employee may File 11(c) Complaint with OSHA seeking damages
► OSHA will investigate complaint
► If OSHA finds reasonable cause that there was retaliation, case may be filed
in Federal Court
► All States have Whistleblower Laws that may apply
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Whistleblower Suits
• Employee right to refuse work if there is imminent danger.
• Changes under pending legislation include:
►Scope of protected activity to include reporting injuries or unsafe
conditions to employers
►Compensatory damages
►Private right of action
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Where do we go from here?
• More important than ever to establish strong unavoidable
employee misconduct defense.
(1) Program for the specific hazard, e.g. fall, electrical.
(2) Employee training (documentation)
(3) Prior enforcement (disciplinary records)
(4) No reasonable opportunity for supervisor to identify and correct
hazard.
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Unavoidable Employee Misconduct
• How do we establish this defense?
►A good hazard assessment
►Training—there may be a cultural, literacy or language barrier.
►Need to use translators, interpreters.
►Need enforcement—yet, new supervisors many times have had no
training in delivering discipline.
►Maintain records of enforcement/discipline.
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How to Reduce the Risk of OSHA Citations
• Make Sure Written OSHA Programs are current and up to
date
Ex.
Hazard Communication Program, Lock Out Tag Out Program, Confined
Space Entry Program, Blood Borne Pathogen Program, Emergency
Action Plan, Powered Industrial Truck Program, Respiratory Protection
Program, Process Safety Management Program
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How to Reduce the Risk of OSHA Citations
• Make Sure the Company is Following each of its Written
Programs
Ex.
Current Chemical Inventory and Current MSDS's, Machine Specific
Energy Control Procedures for each piece of equipment; Confined
Spaces have been evaluated and labeled; Employees using respirators
have been fit tested
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How to Reduce the Risk of OSHA Citations
• Make Sure Periodic Requirements Under Specific OSHA
Standards Are Being Met
Ex.
LOTO: annual periodic inspection of energy control procedures is
complete and documented; annual rescue training for confined space
rescue employees; conduct 3 year fork truck driver recertification; annual
fire extinguisher training, etc.
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How to Reduce the Risk of OSHA Citations
• Make Sure Training is Documented for all Covered
Employees: OSHA standards typically mandate employee
training
Ex.
Emergency Evacuation Plan and Drills, LOTO for affected employees;
Hazard Communication
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How to Reduce the Risk of OSHA Citations
• Conduct Internal Compliance Reviews:
Ex.
Safety Inspections/Walk through (generally find physical conditions)
• Understand that internal reviews are discoverable by OSHA
and others
• Be prepared to promptly fix and/or address what you find
• Documenting Corrective Action/Close Out is as Important as
Finding action items
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How to Reduce the Risk of OSHA Citations
• Internal Audits Continued
• Use Auditors from other departments for a fresh set of eyes
• Use Auditors from other plants with current plant personnel
• Know and use your own OSHA history
►Plant specific citations
►Company wide citations
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How to Reduce the Risk of OSHA Citations
• Know and audit conditions covered by applicable national and
local emphasis programs
• Make sure Audit Reports are properly handled: Confidentiality
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How to Reduce the Risk of OSHA Citations
• External Audits
Ex.
Audit conducted by outside safety consultant
• Privilege issues with Outside Audits
►Outside audits are not privileged unless directed by a counsel
►Company and Outside Counsel can retain consultants to create
arguments the audit may not be discovered by OSHA etc.
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How to Reduce the Risk of OSHA Citations
• Make sure audit reports are properly handled
• Be Prepared to promptly fix or address what you find
• Documenting Corrective Action/Close Out is as important as
what you find
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How to Reduce the Risk of OSHA Citations
• Most Frequently Cited OSHA Standards (Pay Attention to
Relevant Areas)
►Hazard Communication (Employee Training and MSDS’s)
►Lockout Tagout (Authorized Employee Training)
►Lockout Tagout (Machine Specific LOTO Procedures)
►Personal Protective Equipment (Certification of Hazard Assessment)
►OSHA 300 Log Recordkeeping
►Electrical Safety (Safe Work Practices, AEC Flash Protection)
►Powered Industrial Trucks (Daily Truck Inspections, Operator
Retraining)
►Machine Guarding
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How to Reduce the Risk of OSHA Citations
• Effective Use of Safety Committees
• Make sure the committee has the right personnel (motivated
and committed)
• Train Committee Members in OSHA compliance issues
• Consider empowering safety committee members to conduct
work observations
• Consider having committee members conduct safety
inspections and document findings (be prepared to fix what is
found)
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How to Reduce the Risk of OSHA Citations
• Keep Good Minutes of Meetings and Issues (descriptions are
critical)
• Assign Corrective Action to specific persons
• Track status of Corrective action and document close out
• Watch out for: delayed close out, repeat items
• Create Task Forces for complicated fixes/problems
• Create a Mechanism for Assigning an Issue to Management
for Resolution
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Inspection Management
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Increased enforcement and penalties make inspection
management more critical than ever.
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The most effective defenses are developed Before and
During an inspection, not after the inspection
► Why?
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Inspection Management (cont.)
• Inspection Plan – Basic Blocking Tackling
(1) Point person and backup/weekend person (Murphy’s Law
is that accidents will happen during the night shift and on
weekends).
(2) Relevant written OSHA policies and logs should be
readily available.
 Keep copy in easily accessible binder
– Update annually or as otherwise required
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Inspection Management (cont.)
• When OSHA Arrives:
►Politely receive the compliance officer.
►Show compliance officer to conference room/empty
office.
►Immediately notify the point person.
►Point person takes control of the inspection is
responsible for all communications with Compliance
Officer and shadows
Compliance Officer throughout inspection.
►First impression is important.
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Inspection Management (cont.)
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Two Keys to Successful Inspection Management
(1) Focus
(2) Control
Inspection Focus
Determine why OSHA is inspecting
Types of inspections:
(1) Fatality/catastrophe
(2) Employee complaint
(3) Programmed
– Local National emphasis program
– Wall to wall inspection
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Inspection Management (cont.)
• The Reason OSHA is Inspecting Drives the Scope of the
Inspection
• Once You Determine the Scope, Control Inspection by
Limiting it to Only Those Items Within the Scope
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Inspection Management (cont.)
• Fatality/Catastrophe Inspections
►Fatality/catastrophe inspections involve the highest risk of significant
citations
►Highly recommend involving counsel in the on-site inspection as early
as possible
►Limit the inspection to the safety issues surrounding the accident
►Be aware of emotional issues surrounding serious accidents and try
not to let them negatively impact the inspection
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Inspection Management
(cont.)
• Employee Complaints
►Compliance Officer should give employer a copy of the specific
complaint.
►If the Compliance Officer does not, ask for it. Employer is entitled to a
copy.
►Complaint items should drive the scope of the inspection.
Note: You are not entitled to know identity of complaining employee and it
does not matter.
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Inspection Management (cont.)
• Plain View Doctrine
►Compliance officer can issue citations for any violations in “plain view.”
►If Compliance Officer doesn’t see it he/she can’t cite you for it.
• Admissions
►Never admit to a violation (“I’ll check into that”).
►Never admit you don’t have something (“let me get back to you on
that”).
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Inspection Management (cont.)
• Immediately Correct Unsafe Conditions Identified by The
Compliance Officer Without Admitting That The Condition
Constitutes a Violation
►May avoid the citation
►May lessen the classification or penalty of a citation
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Inspection Management (cont.)
• Employee Interviews
►Non-Management Interviews
 Explain employee rights
 Conduct your own investigation
►Management Interview
 Right To Counsel
 Binding Admissions
►Avoid the “casual” interview
►Remember: Everything is on the record. Do not engage in idle
conversation concerning safety issues.
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Inspection Management (cont.)
• Document Control Is Important
► No Such Thing As A “Safety Program”
 Ask Compliance Officer which specific program he/she is looking for.
► Only Provide OSHA with Documents That Are Within The Scope Of
The Inspection.
► OSHA Can Issue Citations For Violations Relating To Any Document
The Employer Gives To Them.
► General Rule Of Thumb: Less Is More
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Inspection Management (cont.)
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How to Push Back
► If Compliance Officer seeks information beyond the scope of the
inspection:
(1) Inquire how/why that relates to the inspection;
(2) If OSHA insists on obtaining the information, tell them you are “not denying
access” but need to get authority before responding to OSHA’s request;
(3) Involve counsel who can work with Area Director and Solicitor’s office to
define the scope.
Again, less is often more.
48 | © 2010 Seyfarth Shaw LLP
Thank you!
Mark A. Lies II
131 S. Dearborn Street
Suite 2400
Chicago, IL 60603
[email protected]
(312) 460-5877
49 | © 2010 Seyfarth Shaw LLP
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