What to Expect from OSHA in 2014 and. What to Expect from OSHA in 2014 and Beyond. Mark A. Lies, II

Transcription

1 September 29, 2014 What to Expect from OSHA in 2014 and Beyond What to Expect from OSHA in 2014 and Beyond Mark A. Lies, II This session is eligible for 2 Continuing Education Hours To earn these hours you must: Have your badge scanned at the door Attend 90% of this presentation Fill out the online evaluation for this session For the Reference of NECA 2014 Chicago A=endees Only 1

2 Learning Objectives 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. 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.) (Construction Industry) (29 CFR 1910, e.g. forklifts, confined space, noise, etc.) (General Industry) 2

3 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 Liability can involve citations (against Employer) and criminal prosecution (against Employer and Management Representatives) Many Different Categories of Employers and Employees On-Site Owner General Contractor Subcontractors Leased/Borrowed Employees Temporary Employees Consultants Key: OSHA is looking at the workplace as a whole so should you. Critical Issues: Contractual relationship Exercise of control over means and methods Imminent Danger 3

4 Aggressive Enforcement THE NEW OSHA: OSHA is back in the enforcement business and There is a new sheriff in town Sec. of Labor Hilda Solis [The Secretary s Statement] is not an abstract wish; it is a stern description of how OSHA is working and I take this phrase seriously. We will shame you into compliance David Michaels Asst. Sec. of Labor - OSHA Translation: OSHA believes the best path to compliance is through aggressive enforcement. Aggressive Enforcement Use of interpreters Emphasis on repeat citations Cautionary tale: Use of knowledge of previous inspection to justify willful citation Requests for Root Cause analysis and company insurance audits 4

5 Aggressive Enforcement Severe Violator Enforcement Program Revised Penalty Policy Non-English speaking employees Recordkeeping/Ergonomics/Dust/Live Electrical Work Issuance Proposed Rules, e.g. Fall Protection Systems, May 24, 2010 (29 CFR 1910) Aggressive Enforcement Employee by Employee Citations PPE Standard LOTO procedures Enhanced Use of General Duty Clause Combustible Dust Ergonomics Workplace Violence New chemicals (not listed on Z tables) Arc Flash Arc Blast Heat Illness Fall Protection 5

6 OSHA Recordkeeping Scope of Documents for Recordkeeping Inspection 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 OSHA Recordkeeping Scope of Recordkeeping 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. Plain view doctrine 6

7 OSHA Recordkeeping Civil Potential citations for under reporting or other errors Other than serious Serious Willful (violation-by-violation citation) Repeat Failure to Abate Criminal Liability of Employer Liability of Management Representative for false certification 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. OSHA favorably considers incentive programs that award safety recommendations or enhancements (financial or other rewards for reporting hazardous conditions, for recommendations for safety improvements, participation in safety committees, etc.) 7

8 Severe Violator Enforcement Program (SVEP) April 22, 2010 OSHA announces Severe Violator Enforcement Program (SVEP) Concentrates OSHA s enforcement efforts on employers with a demonstrated indifference to safety. Severe Violator Enforcement Program (SVEP) Demonstrated indifference means: Willful citations Repeated citations Failure to abate violations Plus A fatality or catastrophe A high-emphasis industrial operation or process (e.g. fall protection, amputation, dust, silica, trenching, lead). Process safety management covered facilities Prior egregious enforcement 8

9 Severe Violator Enforcement Program (SVEP) Severe violator gets heightened scrutiny including: Follow up inspections Inspections at other worksites operated by the employer Increased P.R., including news releases and communications with corporate headquarters Settlement would require increased safety obligations (e.g. hire additional safety personnel, injury/illness reporting obligations, self auditing requirements) Agree to Section 11(b) language which allows for future enforcement through contempt proceedings Elimination of certain citation penalty reductions In effect a blacklist and guilty until proven innocent. Revised Penalty Policy April 22, 2010 OSHA issues revised penalty policy OSHA believes penalties are too low to deter violations OSHA wants to be like EPA 9

10 Revised Penalty Policy Under revised policy: OSHA will increase base penalty by 10% for any history of high-gravity serious, willful and repeat violations over the last five years At informal conference area directors cannot: Reduce or withdraw willful or repeat citations Reduce the penalty by more than 30% Look back 5 years to employer citation history for Repeat citations (previously 3 years) Native Language Requirements April 28, 2010 OSHA issued a memorandum that all training must be given in a language that the employee understands Certain OSHA regulations require training, others require Employer to prove training was effective or understood OSHA will look at how employer provides work instructions to employees and whether it is different than safety training (e.g. safety training in English but supervisor gives work instructions in Spanish). OSHA will interview employees to determine whether they understand English only training (e.g. if employee cannot speak English but all training documents are English only, you have a problem). Employers must determine whether employees are literate Bilingual trainers and documentation may be required to prove training was compliant. 10

11 Employee Literacy Challenges OSHA inspections revealing increasing lack of Employee Literacy Employees don t understand training English Speaking employees are unable to read safety and health programs OSHA challenges the particular language in safety programs Employers are rewriting safety programs to level of fourth grade educational comprehension Employers utilize more visual aids such as pictograms 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 employer $250,000 fine per fatality for individual NOTE: No Miranda Warnings Necessary 11

12 Criminal Law Liability OSHA Obstruction of justice for interfering with inspection Falsification of records Lying to federal inspector STATE LAW Murder Manslaughter Reckless Endangerment Battery Liability for Employer and Manager 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 12

13 Whistleblower Laws Potential Employer Liability If: Employee may File 11(c) Complaint with OSHA seeking damages Potential liability of Employer Personal liability of Manager 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 Where do we go from here? More important than ever to establish strong unavoidable employee misconduct defense. All four elements required (1) Program for the specific hazard, e.g. fall, electrical, lead, asbestos, cadmium, forklift (2) Employee training (documentation) (3) Prior enforcement (disciplinary records) (4) No reasonable opportunity for supervisor to identify and correct hazard. 13

14 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 this is where most employers fail. Maintain records of enforcement/discipline. 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 14

15 Inspection Management Increased enforcement and penalties make inspection management more critical than ever. The most effective defenses are developed Before and During an OSHA inspection, not after the inspection Why? 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 15

16 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. 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 16

17 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 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 17

18 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. 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 ). 18

19 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 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. 19

20 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 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. 20

21 September 29, 2014 Take Away OSHA has changed and, in response, industry must change how it approaches OSHA compliance and enforcement. Thank you! Mark A. Lies II 131 S. Dearborn Street Suite 2400 Chicago, IL (312) v1 For the Reference of NECA 2014 Chicago A=endees Only 21