April 7, Davis Graham & Stubbs LLP

Transcription

1 April 7, 2009

2 Agenda Welcome Today s Speakers Herb Gibson, OSHA Area Director, Denver Area Office, Occupational Health & Safety Administration Laura Riese, DGS Partner Roger Freeman, DGS Partner Free Flow, Questions at Any Time 2

3 Herb Gibson, OSHA Area Director Denver Area Office, Occupational Health & Safety Administration 3

4 Laura Riese, Partner Davis Graham & Stubbs 4

5 Handling OSHA Inspections and Investigations s Inspection Overview OSHA s Authority and Your Rights as Employer Tips for handling an OSHA Inspection 5

6 OSHA s Strategic Development Plan for Targeted Industries In the early 2000s, OSHA developed its Strategic Development Plan. This plan directed significant resources towards reducing occupational hazards, injuries, illnesses, and fatalities. OSHA identified seven industries for targeted direct intervention, surveillance, and performance measures. 6

7 OSHA s Seven Targeted Industries Landscape and Horticultural Services Oil and Gas Well Drilling and Servicing Preserved Fruits and Vegetables Primary Metals and Basic Steel Products Ship and Boat Building and Repair Public Warehousing and Storage Concrete and Concrete Products 7

8 OSHA Region VIII Local Emphasis Programs Automobile Lifts - Bismarck Fall Hazards in Construction - Region-wide Grain Handling Facilities - Bismarck Lumber and Wood Products - Bismarck Oil and Gas Well Industry - Region-wide Roadway Work Zone Activities - Region-wide Silica - Bismarck Silica in Construction - Billings, Englewood Silica in the Cut Stone and Stone Products Industry Denver 8

9 Reason for OSHA Inspection Programmed National Scheduling Plans Local Emphasis Programs Unprogrammed Fatality or Catastrophe Report of Imminent Dangers Complaints and Referrals (including media) 9

10 Advance Notice of Inspections OSHA Section 8(a) prohibits advance notice unless: Apparent imminent danger Inspection most effective after regular business hours To ensure presence of appropriate representatives When advance notice would enhance investigation 10

11 Top 10 OSHA Cited Standards Scaffolding, general requirements, construction (29 CFR ) Fall protection, construction (29 CFR ) Hazard communication standard, general industry (29 CFR ) 1200) Control of hazardous energy (lockout/tagout), general industry y( (29 CFR ) Respiratory protection, general industry (29 CFR ) 11

12 Top 10 OSHA Cited Standards (cont.) Electrical, wiring methods, components and equipment, general industry (29 CFR ) Powered industrial trucks, general industry (29 CFR ) Ladders, construction ti (29 CFR ) 1053) Machines, general requirements, general industry (29 CFR ) Electrical systems design, general requirements, general industry (29 CFR ) 12

13 Top 10 OSHA Penalty Assessments Fall protection, construction (29 CFR ) Scaffolding, general requirements, construction (29 CFR ) Electrical, hazardous (classified) locations (29 CFR ) Control of hazardous energy (lockout/tagout), general industry y( (29 CFR ) Excavations, requirements for protective systems, construction (29 CFR ) 13

14 Top 10 OSHA Penalty Assessments (cont.) Machines, general requirements, general industry (29 CFR ) General duty clause (Section 5(a)(1)) Powered industrial trucks, general industry (29 CFR ) 178) Walking-working surfaces, general requirements (29 CFR ) Process safety management of highly hazardous chemicals (29 CFR ) 14

15 What to Do When OSHA Arrives? Designated person in charge handles OSHA, not the person most involved in accident OSHA conducts opening conference Discloses reason for inspection Discloses scope of inspection Certain OSHA records must be made immediately available for inspection Other records can be provided later 15

16 Right to Refuse Entry Inspectors may enter without delay and at reasonable times Employers have right to require OSHA to seek inspection warrant unless exception met: Consent Plain view Exigent Circumstances 16

17 What to Expect During an OSHA Investigation Walkaround Inspection and Questions Employee Interviews and Interview Statements Photographs and Videotape Recordings Environmental Sampling 17

18 What to Do When Handling an OSHA Investigation Don t refuse to cooperate Be courteous and polite No obligation to volunteer information If unsure of answer, check on it and provide answer later Investigation may last months 18

19 Internal Investigations Company may conduct its own internal accident investigation In cases of fatality or serious injury Company will likely involve outside counsel Company will likely involve outside consultant(s) Company may involve media relations experts Company s investigation is a fact gathering and fact finding mission, not a fault finding mission 19

20 Most Common Employer Mistakes Allowing interested parties to conduct the investigation (e.g., someone involved in the accident ) Rushing to judgment Creating self-serving findings and conclusions Sending s or text messages about the accident or injured person Changing g the accident scene 20

21 Roger Freeman, Partner Davis Graham & Stubbs 21

22 Contractor Safety Issues Summiting the Slippery Slope Practical Problem: Horns of the Dilemma Legal Question: Who Does an Employer Need to Protect? 22

23 Background OSHA Act 1970 Two separate duties general duty clause and compliance with standards General duty own employees Compliance with standards potentially broader 23

24 Background (cont.) Safety Rules 2-year window for adoption without notice and comment Construction standards adopted in May 1971 Standards for other industries adopted separately 24

25 Birth of the Multi-Employer Policy OSHA s Field Operations Manual Manual First published in 1971 Who can be cited? Employer exposing own employees ( Exposing Employer ) Employer creating hazardous condition ( Creating Employer ) 25

26 Ping-Pong Pong between OSHRC and the Courts : OSHRC construes multi-employer doctrine narrowly own employees only 1975: Two Federal Circuits disagreed 1976: OSHRC retreats Creating Employer Liable New category: Party with control over health and safety hazards at the worksite ( Controlling Employer ) 26

27 Ping-Pong (cont.) Several circuit courts subsequently affirm policy (5th Circuit exception) OSHA amends FOM to include Exposing, Creating, Controlling and Correcting Employer 27

28 Summit Case (Solis v. Summit Contractors, 8 th Cir. No , Feb. 26, 2009) Construction of College Dormitory at University of Arkansas Summit general contractor only four employees on site Subcontracted entire project, including brick work Fall protection citation issued to subcontractor and to Summit (Controlling Employer); undisputed that no Summit employees exposed 28

29 Summit Case (cont.) Construction standards at issue key language in 29 C.F.R (a) The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction ti work by complying with the appropriate standards prescribed in this paragraph. 29

30 Summit Case (cont.) Does regulation preclude OSHA from citing Controlling Employer when its own employees were not exposed? ALJ No! OSHRC Yes! 8thCi Circuit itcourt of fappeals 30

31 8th Circuit Decision Summit Case OSHRC ruling reversed in split decision Language g of regulation... does not preclude an employer s duty to protect the place of employment, including others who work at the place of employment, so long as the employer also has employees at that place of employment. Inconsistent application of multi-employer standard, and other Summit arguments, rejected by court 31

32 8th Circuit Decision Summit Case (cont.) Court also rejects argument that multi-employer policy is ill-concerned policy, stating Therefore, the controlling employer citation policy places an enormous responsibility on a general contractor to monitor all employees and all aspects of a worksite. However, these policy concerns should be addressed to Congress or to the Secretary and not to the courts. Vigorous dissent What happened to engaged g in construction work? 32

33 Practical Impacts and Ideas Policy here to stay (but decision focused on construction only) Must have at least one employee onsite to be cited, presumably What to do about ongoing dilemma? 33

34 Practical Impacts (cont.) Turning the other cheek NO Adapt to Particular Situation ti (e.g., Oil and Gas Sites vs. Standard Construction Projects) Contractual language key screening, underscoring OSHA obligations 34

35 Practical Impacts (cont.) Consider all factors Tort law and Workers Compensation States differ Best practices employee teamwork and productivity Present situation details to OSHA Penalty/Classifications should consider these factors 35

36 Conclusion Questions? Thank you for coming Upcoming DGS sessions Please call us if you need further assistance 36

37 Upcoming Sessions: April 8 Green Buildings in Colorado: A panel looks at Colorado s green and energy-efficient buildings May 09 Greenhouse gas reduction,, agricultural sequestration and climate discussion with Alice Madden, Colorado Climate Change Coordinator, and others May 09 Oil & Gas Companies/Non-Traditional Financing Options Employment & Labor Perspectives Series May 09 Private Company Debt Finance/What Does it Take to get a Loan in Today s Market? RSVP or signup for future mailings with lauren.goldman@dgslaw.com Please forward future evites or suggest to others that they attend, too. 37

38 Contact Roger L. Freeman direct Laura J. Riese direct 38