IIPP for the Construction Industry Can you defend your IIPP against AB 2774? Brian Murphy Vice President Heffernan Insurance Brokers North Bay Branch (Direct) 707-789-3065 (Cell) 415-250-5469 (Fax) 707-781-0800 Facilitator: Cathi L. Marx; ALCM, COSS, CHS-V March 1, 2012
SB198 Title 8.3203 Injury & Illness Prevention Program (IIPP) What is AB 2774 (overview) Corporate Criminal Liability Act Injury & Illness Prevention Program Components
AB 2774 Effective January 1, 2011 Federal OSHA critical of California s delegated state plan as being lax on serious violations: Federal OSHA -> 77% of all citations classified as serious All State plans -> 43% serious California -> only 19% serious lowest Federal OSHA wants California to significantly increase violation penalties.
Background: How did we get here? Critics, including many DOSH staff, complain that the Occupational Safety & Health Appeals Board (OSHAB) limits the definitions and criteria for upholding serious violations: serious injury or illness [LC 6302(h)] substantial probability
New Requirements: What does AB 2774 mean? It s an extremely important change in the law. It changes a fundamental definition in classifications. It s certainly the largest change in the eight years I ve been here. DOSH Chief Counsel Amy Martin Labor Code Section 6432 totally repealed and replaced with new Section 6432: Establishes first ever rebuttable presumption in Safety Orders! no longer presumed innocent until proven guilty ; employer must overcome DOSH s alleged violation descriptions ( AVD ) it intends to cite as serious.
New Requirements: What does AB 2774 mean? New Section 6432: realistic possibility now replaces old substantial probability (e.g. 51%) Who defines realistic? DOSH! Isn t anything a possibility?
New Requirements: What does AB New Section 6432: 2774 mean? + The demonstration of a violation by the division is not sufficient by itself to establish that the violation is serious. The actual hazard may consist of, among other things: (1) A serious exposure exceeding an established permissible exposure limit.
New Requirements: What does AB New Section 6432: 2774 mean? + The actual hazard may consist of, among other things: (2) The existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations, or processes that have been adopted or are in use. {LC 6432(a)}
New Requirements: What does AB New Section 6432(b)(1): 2774 mean? + Before issuing a citation alleging that a violation is serious, the division shall make a reasonable attempt to determine, among other things, all of the following: (A) Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards. How similar is similar?
New Requirements: What does AB New Section 6432(b)(1): 2774 mean? + reasonable attempt to determine, among other things, all of the following: (B) Procedures for discovering, controlling access to, and correcting the hazard or similar hazards. Likely cookie cutter IIPP s will fail.
New Requirements: What does AB 2774 mean? New Section 6432(b)(1): + reasonable attempt to determine, among other things, all of the following: (C) Supervision of employees exposed or potentially exposed to the hazard.
New Requirements: What does AB New Section 6432(b)(1): 2774 mean? + reasonable attempt to determine, among other things, all of the following: (D) Procedures for communicating to employees about the employer s health and safety rules and programs..
New Requirements: What does AB 2774 mean? New Section 6432(b)(1): + determine, among other things, all of the following: (E) Information that the employer wishes to provide, at any time before citations are issued, including, any of the following: (i) employer s explanation of circumstances (ii) why employer believes not a serious violation (iii) employer belief its actions were reasonable and responsible
New Requirements: What does AB 2774 mean? New Section 6432(c): If the division establishes a presumption the employer may rebut and establish that a violation is not serious by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.
New Requirements: What does AB 2774 mean? New Section 6432(c): The employer may accomplish this by demonstrating all of the following: (1) The employer took all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred,
New Requirements: What does AB 2774 mean? New Section 6432(c): The employer may accomplish this by demonstrating all of the following: (1) to anticipate and prevent the violation, taking into consideration the severity of harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity (2) The employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.
What can be done to minimize its impact? (DOSH Chief Len Walsh) Document, document, document; then document the process of documentation! No longer will those cheap and canned IIPPs be acceptable. An incomplete or amateur IIPP can generate as much as a $5000 fine for an employer. Employers must be able to demonstrate that they are paying attention.
What can be done to minimize its impact? Defense expert Kevin Bland, Esq But you should be alarmed if you only have a paper safety program that doesn t have any teeth. By applying the realistic probability standard, we as employers get to assert an affirmative defense.
What can be done to minimize its impact? Paul, Hastings, Janofsky & Walker, LLP Likely the number of citations for serious violations will increase, in part because of expanded definition of serious physical harm and change from substantial probability to a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. Key words are anticipate, prevent and eliminate employee exposures.
Corporate & Criminal Enforcement It is the policy of the Division of Occupational Safety and Health to implement the California Corporate Criminal Liability Act (Penal Code 387) by receiving notifications of serious concealed dangers, by maintaining appropriate records concerning any such notifications, by making a referral if the serious concealed danger falls within the jurisdiction of another governmental agency and by investigating any serious concealed danger which falls within the jurisdiction of the Division, as appropriate.» California Labor Code 6425 and/or,» California Penal Code 387 and/or,» California Penal Code 192
Corporate Criminal Liability Act Definition under Penal Code 387 - Corporation, limited liability company, or person who is a manager with respect to a product, facility, equipment, process, place of employment, or business practice.. Definition under Labor Code 6425 - Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or control over any other employee, who willfully violates any occupational safety & health standard, order, special order, and that violation caused death to any employee, or caused permanent or prolonged impairment of the body of any employee...
Employers are selected for inspection Imminent Danger Death Serious accident Employee Complaint Targeted industry by OSHA
What Cal OSHA Says Establish, implement and maintain an Injury and Illness Prevention Program and update it periodically to keep employees safe Inspect workplace(s) to identify and correct unsafe and hazardous conditions Make sure employees have and use safe tools and equipment and properly maintain this equipment Use color codes, posters, labels or signs to warn employees of potential hazards
What Cal OSHA Says Keep records of work-related injuries and illnesses, and post a copy of the totals from the last page of the log 300 during the entire month of February each year, if the employer has 11 or more employees Post, at a prominent location within the workplace, the Cal/OSHA poster informing employees of their rights and responsibilities If required to keep one, provide employees, former employees and their representatives access to the Log and Summary of Occupational Injuries and Illnesses, Cal/OSHA form 300, at a reasonable time and in a reasonable manner
What Cal OSHA Says Establish or update operating procedures and communicate them so employees follow safety and health requirements Provide medical examinations and training when required by Cal/OSHA standards Report immediately by telephone or fax to the nearest Cal/OSHA Enforcement Unit district office any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment as required by section 342(a), Title 8, California Code of Regulations (T8CCR). Serious injury or illness is defined in section 330(h), T8CCR
Injury & Illness Prevention Program for Construction CCR Title 8 1509 If it isn t written down it didn t happen http://www.dir.ca.gov/dosh/etools/09-031/index.htm http://www.dir.ca.gov/dosh/dosh_publications/iipp.html http://www.dir.ca.gov/dosh/puborder.asp http://www.dir.ca.gov/title8/1509.html
1509. Injury and Illness Prevention Program (a) Every employer shall establish, implement and maintain an effective Injury and Illness Prevention Program in accordance with section 3203 of the General Industry Safety Orders. (b) Every employer shall adopt a written Code of Safe Practices which relates to the employer's operations. The Code shall contain language equivalent to the relevant parts of Plate A-3 of the Appendix. (c) The Code of Safe Practices shall be posted at a conspicuous location at each job site office or be provided to each supervisory employee who shall have it readily available. (d) Periodic meetings of supervisory employees shall be held under the direction of management for the discussion of safety problems and accidents that have occurred. (e) Supervisory employees shall conduct "toolbox" or "tailgate" safety meetings, or equivalent, with their crews at least every 10 working days to emphasize safety. www.toolboxtopics.com
Injury & Illness Prevention Program 1. Responsibility: Mission Statement, Day-to Day 2. Compliance: Disciplinary Action Policy, Match to HR policy * watch progressive discipline with safety related issues 3. Communication: Method / System 4. Hazard Assessment: JSA, Facility Inspections, Audits, Investigations, Code of Safe Work Practices 5. Accident / Incident Investigation: Prevent Recurrence 6. Hazard Correction: Tracking System, Timely, Effective 7. Training & Instruction: Managers/ Supervisors, Specific to Job Duties
1. Identification of the person or persons responsible for implementing the program. Responsibility -- Whether the employer's written IIP Program provides the name and/or job title of the person or persons with the authority and the responsibility for implementing the program. If job title alone is used to identify the responsible person(s), a method must be available, e.g., a list of persons by job titles, by which employees can identify the name of the individual whose title is designated as the person(s) responsible for the IIP Program. Sample effectiveness measure: Are employees actually aware of whom the person is with the authority and responsibility for their IIP Program and can they access the person if necessary?
2. System for ensuring that employees comply with safe and healthy work practices. Compliance -- Whether a system for ensuring that employees comply with safe and healthful work practices is set forth in the employer's written IIP Program. Sample effectiveness measure: Have employees been recognized for performing safe and healthful work practices, disciplined for performing unsafe or unhealthful work practices, or offered training or retraining programs to ensure compliance with safe and healthful work practices?
3. Safety Communication Communication -- Whether a system for communicating with employees in a form readily understandable by all affected employees about safety and health matters, e.g., meetings, training programs, posting, written communications, an anonymous notification system, is set forth in the employer's written IIP Program, and whether employees are encouraged to inform their employer about hazards at the worksite without fear of reprisal. (e) Supervisory employees shall conduct "toolbox" or "tailgate" safety meetings, or equivalent, with their crews at least every 10 working days to emphasize safety. Sample effectiveness measure: Are employees actually aware of methods to communicate with their employer about health and safety matters, and have they utilized the available communication methods?
4. A system for identifying and evaluating work place hazards Hazard Assessment -- Whether procedures for identifying and evaluating workplace hazards, such as scheduled periodic inspections performed by a competent observer, are set forth in the employer's written IIP Program, and are performed at the following times: (a) when the IIP Program is first established; (b) when new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and/or health hazard; and (c) whenever the employer is made aware of a new or previously unrecognized hazard. Sample effectiveness measure: Does implementation of the procedures chosen by the employer result in a comprehensive evaluation of the hazards present at the workplace?
Code of Safe Work Practices (b) Every employer shall adopt a written Code of Safe Practices which relates to the employer's operations. Foremen shall insist on employees observing and obeying every rule, regulation, and order as is necessary to the safe conduct of the work, and shall take such action as is necessary to obtain observance. Anyone known to be under the influence of drugs or intoxicating substances that impair the employee s ability to safely perform the assigned duties shall not be allowed on the job while in that condition. Horseplay, scuffling, and other acts that tend to have an adverse influence on the safety or well-being of the employees shall be prohibited. Employees shall be instructed to ensure that all guards and other protective devices are in proper places and adjusted, and shall report deficiencies promptly to the foreman or superintendent. Workers shall not handle or tamper with any electrical equipment, machinery, or air or water lines in a manner not within the scope of their duties, unless they have received instructions from their foreman. All injuries shall be reported promptly to the foreman or superintendent so that arrangements can be made for medical or first aid treatment. When lifting heavy objects, the large muscles of the leg instead of the smaller muscles of the back shall be used. Materials, tools, or other objects shall not be thrown from buildings or structures until proper precautions are taken to protect others from the falling objects..
5. Procedures to investigate occupational injury or illness. Accident/Exposure Investigation -- whether a procedure to investigate the occurrence of occupational injuries or illnesses is set forth in the employer's written IIP Program. Sample effectiveness measure: Does implementation of the investigational procedures chosen by the employer result in a determination of the cause(s) of the occupational injury or illness?
6. Methods & procedures for correcting unsafe or unhealthy conditions & work practices in a timely manner Hazard Correction -- Whether methods and/or procedures for correcting unsafe or unhealthful work conditions, work practices and procedures, in a timely manner based on the severity of the hazard, are set forth in the employer's written IIP Program. Specific abatement methods must be included in the employer's IIP Program and must address: (a) when unsafe or unhealthful conditions, work practices or procedures are observed or discovered; and (b) when an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/or property, all exposed personnel must be removed from the area except those necessary to correct the existing condition. Employees necessary to correct the condition must be provided the necessary safeguards. Sample effectiveness measure: Does implementation of the methods and/or procedures chosen by the employer to correct a workplace hazard achieve abatement of the hazard?
Multi Employer Program Controlling General Creating Created Correcting By Contract Exposing Own Employees
7. An occupational health and safety training program Training and Instruction -- Whether an effective training program designed to instruct employees in general safe work practices and to provide specific instruction with respect to hazards specific to each employee's job assignment is set forth in the employer's written IIP Program and whether the required training is provided: (a) when the Program is first established; (b) to all new employees: (c) to all employees given new job assignments for which training has not previously been received; (d) whenever new substances, processes, procedures or equipment are introduced into the workplace and represent a new hazard; (e) whenever the employer is made aware of a new or previously unrecognized workplace hazard; and (f) for supervisors to familiarize them with the safety and health hazards to which employees under their immediate direction and control may be exposed and how to communicate information about those hazards effectively. Sample effectiveness measure: Does training result in an increase in a worker's understanding of workplace hazards, and an improvement in a worker's performance of safe and healthy work practices?
8. Record Keeping All records to be kept for three years, unless employer qualifies for an exception to this (see exceptions) Recordkeeping -- Whether there is adequate written documentation of the steps taken to implement and maintain the employer's Program including: Records of scheduled and periodic workplace inspections, including person(s) conducting the inspections, any unsafe condition and/or work practice which has been identified, the action and timetable for correction of the identified hazards, and whether, for employers with ten or more employees, the records have been maintained for at least three years;
Records of safety and health training, including employee name or other identifier, training dates, the type(s) of training, training providers, and whether, for employers with ten or more employees, the records have been maintained for at least three years. (Best Practice: for term of employment plus 5 years but make sure you they are organized well and secure.) EXCEPTION: For employers with fewer than ten employees, a log of instructions can be maintained which provided instruction to the employee with respect to the hazards unique to the employee's job assignment when first hired or assigned new duties; Documentation of training for each employee is called for in the program Employers in the construction industry who are required to be licensed may use records relating to employee training provided to the employer in connection with an occupational safety and health training program approved by the Division, and shall only be required to keep records of those steps taken to implement and maintain the program with respect to hazards specific to the employee s job duties.
On behalf of Heffernan Consulting Thank You! Brian Murphy Vice President Heffernan Insurance Brokers North Bay Branch (Direct) 707-789-3065 (Cell) 415-250-5469 (Fax) 707-781-0800 http://www.aspenrmg.com/heffernanwebinars.htm cmarx@aspenrmg.com