What is new with the Occupational Safety & Health

What is new with the Occupational Safety & Health Administration and what you can do to be ready.

JACKSON KELLY PLLC 1099 18th Street, Suite 2150 Denver, Colorado 80202 Phone: (303) 390-0003 Fax: (303) 390-0177 Laura E. Beverage Karen L. Johnston Christopher G. Peterson Dana M. Svendsen Kristin R.B. White © Jackson Kelly PLLC 2010

What is new with the Occupational Safety & Health Administration

© Jackson Kelly PLLC 2010

New Personnel Last Year

• On February 24, 2009, Hilda Solis

was confirmed as the Secretary for the Department of Labor.

• On April 13, 2009, Jordan Barab was

appointed Deputy Assistant Secretary of Labor for OSHA.

• On December 9, 2009, Dr. David

Michaels was confirmed as the Assistant Secretary of Labor for OSHA.


OSHA is Back in the Enforcement Business

Expect

• more enforcement and • increased penalties


OSHA is Back in the Enforcement Business What This Means:

• OSHA plans to hire 150 new

inspectors in fiscal year 2010.

• OSHA’s budget will increase by 10% in

fiscal year 2010.

• Enforcement will receive an additional

$25.5 million.

• Compliance assistance will receive an

additional $1 million.


Increased Violations and Inspections

• In 2008, 87,687 violations of OSHA

standards and regulations were cited.

• Since 2004, serious violations have

increased 8.7%, willful violations have increased 11.9%, and repeat violations have increased 19.4%.


New Standards Will Be Promulgated

• Diacetyl flavoring (popcorn lung) • Combustible dust • Confined space in construction • The hazard communication will be

rewritten to be consistent with the Global Harmonization System.


What is New in Recordkeeping

A new focus:

• OSHA will review medical records

and safety program policies that might affect injury and illness reporting.

• OSHA will be scrutinizing incentive

programs used by employers to help reduce injuries.

• The focus will be on engineering-out

hazards as opposed to changing worker behaviors.


Recordkeeping

• Legislation has been introduced that

would toughen safety recordkeeping requirements for large employers with more than one work site.

• The legislation would require

employers with more than one establishment and 500 or more workers to report the numbers and rates of work-related deaths, injuries, and illnesses at all of their work sites.

• Currently, employers only report

injuries if three or more workers are hospitalized or if a worker dies.


Recent Trends in OSHA Enforcement

• Areas of emphasis due to high

injury/illness rates:

– Landscaping – Oil and gas field services – Residential building construction – Commercial and institution

building construction

– Highway, street and bridge

construction © Jackson Kelly PLLC 2010

Recent Trends in OSHA Enforcement

• Areas of emphasis for fatality

hazards include:

– Falls from elevation – Trenching – Struck by – Powered industrial vehicle – Electrical


OSHA’s Current NEPs Include:

• Oil Refineries • Combustible Dust • Amputations • Lead • Silica • Trenching, and • Shipbreaking Operations.


New NEPs to Expect From OSHA

• Diacetyl and Flavorings Industry • Workplaces that release highly

hazardous chemicals – focusing on explosives, waste water treatment facilities, and ammonia refrigeration.


Potential New Legislation Currently Pending

• OSHA Reform Bills currently

pending in both the House and Senate © Jackson Kelly PLLC 2010

Key Provisions

• Increase the maximum penalty for

willful citations from $70,000 to $120,000 and increase with minimum penalty from $5,000 to $8,000;

• Increase the maximum penalty for

serious and other than serious citations from $7,000 to $12,000;

• Establish a minimum penalty of

$20,000 if a violation causes the death of an employee.


The Provisions

• Permit felony prosecutions against

employers who commit willful violations that result in death or serious bodily injury.

• Require OSHA to investigate all

cases of death and injuries that put two or more employees in the hospital.

• Provide workers and employee

representatives with the right to contest OSHA decisions on whether to issue citations and the classification of penalties proposed for them.


The Provisions

• Preclude OSHA from designating a

citation as unclassified.

• Provide workers the opportunity to

object to a modification or withdrawal of a citation in settlement, and then being entitled to a hearing before the Commission on the objection.

• During settlement negotiations,

provide an opportunity to the injured individual or his representative to appear and make a statement before the parties enter into an agreement.


• Each Bill is still in Committee • We expect penalties to be increased

at a minimum.


What can you do to be ready?


Model Behaviors for the Inspection Process

• Know your rights and the

company’s limitations.

• Be an active participant and

understand the process.

• Do not be intimidated. • Be firm, but polite.


Model Behaviors for the Inspection Process

• Know when to object to certain

conduct don’t wait until it is too late.

• Know when you need help, and ask

for it immediately.

• Don’t be overly antagonistic or a

pushover.

• Have a system in place for dealing

with the processes in advance.


Authorized Representatives of Employees Under the OSH Act

• OSHA regulations permit an

employee representative(s) to accompany the inspection.

• Generally, one (1) employer

representative and one (1) employee representative, but additional representatives are allowed at the discretion of the Safety & Health Officer, if it would further aid the inspection.


OSHA Inspections

Opening Conference

• Establish and maintain a cooperative

relationship with the compliance officer.

• Ask the compliance officer the purpose of

inspection or visit.

• Clearly establish the parameters of the

inspection - agree on areas/equipment to be inspected, routes to take, extent of inspection (i.e., whether samples will be taken, protocols, side-by-side or split, trade secret issues).

• Identify inspection team. • Ascertain when and how interviews will be

conducted.

• Put it in writing. • Resolve disputes with the Compliance

Officer Supervisor.



OSHA’s authority to enter premises, and conduct inspections/investigations

• OSHA must have a private

employer’s consent or a valid warrant to enter the premises (except in imminent danger or “plain view” situations).

• An employer can challenge a

warrant, typically by filing a motion to quash the warrant.



OSHA’s authority to enter premises, and conduct inspections/investigations

• Administrative warrants are liberally

granted. Therefore, insisting that an OSHA inspector obtain a warrant may result in only slight delay and moving to quash is often unsuccessful. However, limits may be imposed on the scope of the inspection as a result of a challenge.

• OSHA can also issue investigative

subpoenas for both testimony and documents.


Exceptions

• Plain View Doctrine • Open Fields Doctrine



Records

• Ask the compliance officer to

provide a written list of requested records.

• Provide the list to designated official

within company for review.

• Have records that are required by the

OSH Act ready & available for inspection.

• Inform compliance officer that any

requests for records not required by the OSH Act will be reviewed in accordance with company policy.



Participation

• Accompany the compliance officer at

all times.

• Take photographs/video

records/samples, etc. of the same items the compliance officer does.

• Take notes of all conditions noted by

the compliance officer.

• Discuss immediately with the

compliance officer the reasons for and/or hazards caused by any alleged violation the inspector notes.

• Arrange abatement and/or protective

measures as soon as possible.



Participation

• Discuss abatement time extensions,

if needed.

• Do not make admissions against

interest.

• Give compliance officer only facts,

not guesses.

• Take notes of all available evidence

regarding any alleged violation (e.g., witness names and statements; inspector’s comments; description of condition/hazard including measurements, diagrams, equipment, time and location).



Closing Conference

• Request duplicates of OSHA samples

and photographs.

• Ask questions regarding alleged

violations and suggested abatement methods.

• Ask what citations will be issued. • Correct any factual

misunderstandings.

• Do not make admissions against

interest.

• Take notes.


Key Points

 OSHA must have a warrant to enter

into an employer’s premises unless the employer waives that requirement.

 Be prepared for the inspection by

having an effective safety and health program in place.

 Be cooperative with your compliance

officer, but understand your rights and the limits of the officer’s authority.


Key Points

 Actively participate in the inspection

and accompany the compliance officer at all times.

 Duplicate all the samples,

photographs, and data collected by the inspector.

 Document any alleged violations

before they are corrected and after abatement occurs.


Key Points

 Do not make admissions against

interest during inspection and do not speculate.

 Effectively participate in the opening

and closing conferences.

 Be prepared to challenge the

issuance of the enforcement action, if necessary.


The Informal Pre-Contest Conference

• The employer has the opportunity for

an “Informal Conference” with the OSHA Area Director’s Office to discuss citations prior to the 15 working day period for contesting citations. The conference provides the employer with an opportunity to present evidence to demonstrate that the citation is without merit and should be vacated or to argue for reduction in characterizations and/or penalty amounts.



• Checklist for successful participation in an

informal conference - Gather facts to support the lack of a violation or any mitigating factors.

- Consider helpful evidence that is available.

- Research legal support for your position.

- Are there any affirmative defenses available?

Does the evidence support OSHA’s characterizations of the alleged violations, i.e., serious, willful, repeated, etc.?



• Absolute guidelines to follow:

- Be truthful.

- Be cooperative.

- Remain focused on the issues at hand.

- Correct any factual misunderstandings.

- Present the evidence developed to support your case.

- Be prepared to answer tough questions.

- Take notes on any comments made or modifications agreed to.

- Ask for explanations when you are unclear.


Authority In Inspections/ Investigations WARRANTS Must obtain a warrant to conduct searches of sites and records.

INTERVIEWS Does have the right, once on property, to conduct private interviews. [§ 8(a)(2)] SUBPOENAS Authority to issue subpoenas to compel testimony and/or documents. [§ 8(b)] © Jackson Kelly PLLC 2010

Authority In Inspections/ Investigations

WITHDRAWAL ORDERS

Court ordered Injunctive authority to abate imminent danger after a hearing. [§ 13]

ABATEMENT

Valid contest stays abatement until adjudication hearing. [§ 10(b)] © Jackson Kelly PLLC 2010

Key Points

 OSHA has broad jurisdiction over

workplace safety and health and may conduct inspections from time to time.

 OSHA generally does not have

warrantless inspection rights of entry.

 OSHA may require employers to

produce for review records required by the OSH Act and regulations to be maintained.



There are two types of OSHA Inspections: Programmed and Unprogrammed

• Programmed inspections have the following

characteristics: - Are the lower priority of inspection activity.

- Are aimed at specific high-hazard industries and occupations and at hazardous exposures to toxic substances.

• Factors forming the basis for selection of an

industry for inspection include injury and illness incidence rates, and employee exposure to toxic substances.

• May be wall-to-wall, but begin with a review of

injury/illness rates and lost workdays.



• Unprogrammed Inspections:

- Are the higher priority of inspection activity and cover three categories:

• Imminent danger investigations • Accident, fatality and

catastrophe investigations

• Employee complaints • Are not normally wall-to-wall

inspections, but may be, depending on circumstances.


Unprogrammed OSHA Inspections

Referral

• Notice of an alleged hazard or a

violation of the Act given by any source, including media, not encompassed under the complaint inspection.


Unprogrammed OSHA Inspections

Formal Complaint

• A signed complaint alleging an

imminent danger or the existence of a violation threatening physical harm, submitted by a current employee, a representative of employees, or present employee of another company if that employee is exposed to the hazards of the complained-about workplace.


For more information on these and other occupational safety and health topics, please visit: http://safety-health.jacksonkelly.com/

Laura E. Beverage Karen L. Johnston Christopher G. Peterson Dana M. Svendsen Kristin R.B. White © Jackson Kelly PLLC 2010

What is new with the Occupational Safety &amp; Health

What is new with the Occupational Safety & Health Administration and what you can do to be ready.

What is new with the Occupational Safety & Health Administration

New Personnel Last Year

OSHA is Back in the Enforcement Business

OSHA is Back in the Enforcement Business What This Means:

Increased Violations and Inspections

New Standards Will Be Promulgated

What is New in Recordkeeping

Recordkeeping

Recent Trends in OSHA Enforcement

Recent Trends in OSHA Enforcement

• Areas of emphasis for fatality

hazards include:

OSHA’s Current NEPs Include:

New NEPs to Expect From OSHA

Potential New Legislation Currently Pending

Key Provisions

The Provisions

The Provisions

What can you do to be ready?

Authorized Representatives of Employees Under the OSH Act

OSHA Inspections

OSHA Inspections

OSHA Inspections

Exceptions

OSHA Inspections

OSHA Inspections

OSHA Inspections

OSHA Inspections

Key Points

Key Points

Key Points

WITHDRAWAL ORDERS

ABATEMENT

Key Points

OSHA Inspections

OSHA Inspections

Unprogrammed OSHA Inspections

Unprogrammed OSHA Inspections

For more information on these and other occupational safety and health topics, please visit: http://safety-health.jacksonkelly.com/

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