Risk Mitigations and Legal
Ramifications in
Occupational Health and
Safety
Presenter: Matthew T. Arvin, Esq.
Title: Risk Mitigations and Legal Ramifications
in Occupational Health and Safety
Company: Barton Marlow
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THE LEGAL PROCESS FOR
OSHA CITATIONS
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THE OSHA CITATION PROCESS
• Citations
• Describe the OSHA requirement violated
• List proposed penalties
• Deadline to correct hazards
• Informal conference with the OSHA area director
• Settlement offer
• Clarify citation
• Within the period to contest
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Citation Compliance
• Companies not contesting must
• Complete an Abatement Certification
• Pay any penalties
• Provide additional proof, if needed
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Contesting Citations
• Companies may formally contest:
• By sending in a written Notice to Contest to the OSHA area director
• Within 15 working days after receiving the citation
• If the company does not contest the citations, they become final
order.
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Contesting Citations (cont.)
• Notice of Intent to Contest must include:
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The citation
The penalty
The abatement date
Specify which violations are being contested
Legal Proceedings
• The case is forwarded to the Occupational Safety and
Health Review Commission (OSHRC):
• Attorneys appointed by the President
• Independent of the Department of Labor and OSHA
• Assigns case numbers
• Puts the cases on the docket
• An Administrative Law Judge will hear the case
• A full hearing with evidence presented
• An attorney from the solicitor’s office of the U.S.
Department of Labor will act as prosecutor.
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Legal Proceedings (cont.)
• Administrative law judge actions & decisions
• Either party may request further review by OSHRC within 30 days
• Commissioner- can bring the case before OSHRC for review
• OSHRC’s ruling
• May be appealed to the federal court of appeals
• 60 days to appeal the Commission’s decision
• Venue for the appeal
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Generic Test vs.
Reasonable Person Standard Test
• Courts use a Generic Test for citation issues:
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The applicability of the cited standard
The employer's noncompliance with the standard's terms
The employee access to the violative conditions
The employer's actual or constructive knowledge of the violation
• Courts also use a Reasonable Person Standard Test
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TRAINING
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OSHA’s Requirement to Train
• 1926.21(b)(1)
• The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions
• How do you instruct? OSHA does not specific how.
• JSAs
• Toolbox talks
• Effective Training
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What makes a JSA or JHA effective?
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Job Site Analysis
• A well written JSA should be specifically tailored to the job.
• Effective JSAs:
• Tell what the tasks are
• Describe what the hazards are for the tasks
• Explain the mitigation efforts are for the hazards
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Wal-Mart v. OSHRC
819 F.3d 200 (5th Cir. 2016)
• Issue: Can Wal-Mart create a hazard assessment for one
distribution center and apply it as the hazard assessment for other
distribution centers?
• The Court of Appeals ruled that an employer should confirm that
the workplaces are indeed identical before one JSA is used from
another location.
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JSAs in the Workplace
• All workers must:
• Read the JSA
• Understand the JSA
• Sign the JSA
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Effectively articulating the JSA to workers
• The JSA
• Can be changed
• Should be reviewed periodically
• Understood by multiple languages on the jobsite
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Compass Environmental v. OSHRC
663 F.3d 1164 (10th Cir. 2011)
• The Facts
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Using a mobile excavator with a 75-foot boom to dig a trench
The JSA did address the hazard of overhead high voltage powerlines
A trench hand was hired on late, and the JSA was not reviewed with him
As the operator moved the excavator to the refueling tank, the boom
touched the power line and killed the trench hand
Compass Environmental v. OSHRC
663 F.3d 1164 (10th Cir. 2011)
• The Court of Appeals found persuasive the fact that the
overhead power lines were in the JSA and addressed to much of
the crew and that a reasonably prudent employer should have
addressed the hazards to the killed worker.
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Future Supreme Court Justice Neil
Gorsuch dissented in the Compass case
• The operator deviated from the standard
operating procedure of having a forklift bring
the fueling tank to him.
• It was not foreseeable by Compass that the
new hire would have been exposed to the
hazard.
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The Quality of Online Training
• OSHA stated in 2019 that online training does not satisfy their
training requirement
• Lacks face to face interactions
• Lacks a practical component
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On-the-Job Training
Safety training includes:
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An in-person class session
A practical section
Conducted by a qualified trainer
Hands-on application
Must be company specific
W.G. Fairfield v. OSHRC,
285 F.3d 499 (6th Cir. 2002)
• Roadside construction worker crossed an
interstate by foot and was killed by a vehicle.
• OSHA officers found two violations:
• Failing to establish policies or procedures on
crossing roadways
• Failing to instruct its employees on how to safety
cross major interstates
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The Reasonable Person Test used in
W.G. Fairfield v. OSHRC
• A safety program must include measures for detecting and
correcting hazards which a reasonably prudent employer
would adopt.
• An employer must instruct workers on hazards of which a
reasonably prudent employer would have been aware.
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The Fairfield Case Ruling
• Fairfield argued that the hazards of the traffic were so obvious that
a reasonably prudent employer would not have to train employees
on the hazards.
• The Court of Appeals affirmed the violations.
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Compensation for Time
Incident to the Job
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Pre- and Postliminary Training
• Fair Labor Standard Act of 1938
• Minimum wage
• Overtime over 40 hours worked
• The Portal-to-Portal Act of 1947
• Preliminary or postliminary activities are excluded from compensation
• The Supreme Court in Steiner v. Mitchell (350 U.S. 247)
• Pre- and postliminary activities are compensable if they are an integral and
indispensable part of the principal activity
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Compensation for Pre- and Postliminary Training
• Not integral and indispensable training:
• Training of potential employees (Walling v. Portland Terminal Co., 330 US
148).
• EMT training for police officers (Bienkowski v. Northeastern University, 285
F. 3d 138).
• Obtaining an OSHA 10 card as a precondition of employment (Chao v.
Tradesmen International, 310 F.3d 904).
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29 CFR 785.27
Time spent in Meetings and Training
• The exception for compensable time:
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Attendance is outside regular working hours
Attendance is in fact voluntary
Is not directly related to the employee’s job
Does not perform any productive work during such attendance
All four must be met
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Maintain Organized Records
• Examples of what may be requested by OSHA or attorneys:
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Site Specific Safety Plans
Proof of training records/orientations
Proof of JSAs/JHAs
Past Toolbox Talks/Safety Meetings
Written Disciplinary Actions
Records of injury and illness
Safety Audits and Corrections
Proof of Equipment Inspections
Proof of Insurance
• Present what is requested
• Be organized & timely
• Could be prima facie proof that your safety program is effective
• May be the difference between a citation and no citation, or winning and
losing a lawsuit
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POST ACCIDENTS
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Consequences: 13 billion dollars is lost to injuries
each year
• Both the employers and employees
have direct and indirect costs
• Direct costs include:
• Lost wages
• Insurance claims
• Legal costs
• Medical bills
• Indirect costs include:
• Pain and suffering
• Loss of productivity
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When management first arrives at the scene
• Eliminate any existing hazards
• Ensure that the victim(s) are properly taken care of
• Notify appropriate outside agencies
• Barricade the area
• Protect the evidence
• Take photographs
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Examining the Accident Scene (cont.)
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Identify people involved
Interview witnesses as quickly as possible
Find root causes
Determine corrective actions
Implement corrective actions
• Pre-inspection conference
• Trade Secrets
• Include all important party members
• Complaint and reason for inspection
OSHA
INVESTIGATIONTHINGS YOU CAN
DO
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• Walk around
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Company representative
Direct routes
Take notes and pictures
Have records ready
• Interviews
• Company representative present
Personal Injury Cases
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Liciaga v. NYC Transit Authority
N.Y. Slip Op. 33331 (N.Y. Sup. Ct. 2019)
• Liciaga was awarded damages for over $110 million after a 20-foot-long piece
of elevated subway line was dropped by a crane onto him as he was riding
his bicycle underneath.
• Barricading
• Plaintiff biked through a section of incomplete barricade.
• Ground person
• Someone controlling traffic told him it was safe to proceed.
• Rigging
• Defective rigging? Improper rigging practices?
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Ronald Bayer vs. Panduit Corporation
• Chicago Ironworker was awarded a $64 million jury
verdict after being left paralyzed due to falling headfirst
15-20 feet from a beam.
• Defense raised the issues that:
• He exited the manlift basket
• He disconnected his retractable from inside the manlift basket
• The Plaintiff argued that:
• If he were to remain inside the manlift basket, there was a risk
of the lift tipping over.
• The retract was not designed for a horizontal application.
• The defendant failed to establish a horizontal lifeline on the
beam
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Kalinowski v. ABRA Auto Body & Glass
• Sheet metal worker suffered brain damage after tripping and
falling more than 20 feet through a skylight on defendant’s
roof and was awarded an almost $25 million verdict.
• The defense asserted:
• That the contractor didn’t do a risk assessment before work
• Should have know of the hazards around skylights
• Was acquainted with OSHA’s regulations on fall protection
• However, the jury found that:
• ABRA failed to warn Kalinowski of the dangers
• ABRA failed to set up guardrails or safety nets around the skylight
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Criminal Convictions
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Manslaughter Convictions
• NYC foreman was convicted of criminally
negligent homicide and was sentenced to 1-3
years in prison in 2015 for a fatality from a
trench collapse.
• In 2015 in California, both a project manager
and the company’s owner were sentenced to
two years in jail for involuntary manslaughter
after a wall of dirt crushed a laborer to death.
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International Criminal Convictions
• In England in 2014, there
was a three-year
manslaughter conviction due
to a fatality from an
excavation collapsing.
• In 2018, in Quebec, an
owner was sentenced to 18
months in jail, after an
employee died due to a
trench cave-in.
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Q&A DISCUSSIONS
Matthew T. Arvin, Esq.
Email: matt.arvin85@gmail.com
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