8 8 2013
Introduction to
Safety
John Newquist
Common Law 1800s
• Employee had to prove
three area under Common
Law
• Worker accepted risk of
employment
• Injury was a consequence
of the job
• Worker had contributory
negligence
• Burden of proof on the
injured
Safety Origins
• 1877, the state of
Massachusetts
passed a law
requiring guarding
for dangerous
machinery, and took
authority for
enforcement of
factory inspection
programs.
Safety Origins
• 1884
Pennsylvania
Mine Safety Act
(PMSA) was
passed into law.
Worker Compensation
• 1902 Maryland first
workers'
compensation law.
• 1904 US Supreme
Court Overturns MA
law
• 1916 the Supreme
Court upheld the
constitutionality of
state workers'
compensation laws.
Safety Organizations
• 1896 NFPA
• 1911 ASSE
• 1911 ASME for
Boilers and
Elevators
• 1913 National
Safety Council
• 1918 ANSI
The Jungle
• 1906 Upton Sinclair
• “Let a man so much
as scrape his finger
pushing a truck in the
pickle rooms, and he
might have a sore that
would put him out of
the world; all the
joints in his fingers
might be eaten by the
acid, one by one. “
Cherry Coal Mine Disaster
• November 13, 1909
• 259 Died
• Hay bales sent down to feed
mules caught fire from
burning oil from kerosene
torch.
• 21 men survived in a pocket
500 feet underground and
were rescued after 8 days.
• Outcry over tragedy lead to
fire safety rules for mines
and the Illinois Liabilty Act
which lead later to the IL
Worker Compensation Act.
Steel Industry
• From 1906-1994, 506
workers have been
killed at U.S. Steel
Gary Works.
Triangle Shirt Waist Fire
• March 25, 1911
• 146 died
• Door to an exit opened
inward
• Outside stairway
collapse
• Fire hoses went only Exit doors may have been
locked
th
to 7 floor
Walsh-Healy
• Federal contracts
must be fulfilled in a
healthful and safe
working environment.
• “blacklisted" from
federal contracts for 3
years.
• 1969 incorporated
ACGIH’s TLV’s into the
act. (Silica, Absestos
were examples)
40 hour work week,
over time, minimum
wage, ban on child
labor were major
provisions
Texas City
• April 16, 1947
• Cargo Ship of
Ammonium Nitrate
Exploded
• Neighboring
Monsanto plant caught
fire
• 561 died
Safety Laws
• 1952 Coal Mine
Safety Act
• 1966, the Metal
and Nonmetallic
Mines Safety Act
• 1969, the
Construction
Safety Act
• 1970 OSHA
Industrial Safety 1969
• 14,500 American
workers were killed
annually
• Safety and health laws
varied state to state
OSHA
• Department of Labor
to enforce Safety and
Health laws
• NIOSH
• OSHRC
• Osha Training
Institute
• 56 million workers at
3.5 million workplaces
in 1971

This Act created OSHA,
the agency, which formally
came into being on April
28, 1971
General Duty Clause
• Section 5(a)(1)
• "a place of
employment which is
free from recognized
hazards that are
causing or are likely to
cause death or serious
physical harm to [its] Not wearing seatbelts is a
employees."
common citation under the
general duty clause.
1970’s
• Permissible exposure
limits for more than 400
toxic substances including
specific standard for
asbestos
• State plans approved
• IL give back OSHA
enforcement -1975
• Several Court Challenges
Barlow -1978
• Warrant requirements of
the Fourth Amendment
were applicable to OSHA
inspections per US
Supreme Court
• Probable cause in the
criminal law sense is not
required.
• Anticipatory warrant
procedures used if repeat
requests.
Barlow ran electrical
and plumbing
installation business in
Idaho.
Whirlpool - 1980
• 1974 case - The two workers
were told to go out on a screen
20 feet above the floor to
retrieve small appliance parts
which had fallen from a
conveyor belt system above.
• Workers sent home and docked
6 hours pay.
• Workers can refuse if
reasonable apprehension that
death or serious injury or illness
might occur as a result of
performing the work
AFL-CIO v. American Petroleum
Institute -1980
• Supreme Court
decision vacates
OSHA's benzene
standard, establishing
the principle that
OSHA standards must
address and reduce
"significant risks" to
workers.
Benzene was used in
gasoline, paints, and
many other chemicals
American Textile -1981
• Supreme court ruled in
favor of worker’s
health standard that
was more stringent yet
feasible vs. one that
has more favorable
cost-benefit analysis
It was estimated that 1 in 12
textile workers had
Byssinosis, an asthma-like
condition in the 1970s.
1980’s
• Access to medical and
exposure records
• Hazard communication
• Updated asbestos
• Ethylene oxide,
formaldehyde, and benzene.
• Hazardous waste operations
and emergency response
1984 Bhopal Explosion kills
• Lockout/tagout of
2000+
hazardous energy sources.
• Egregious
OSHA Starts CHEMSEP
1990’s
• Confined Space
• Respirators
• Personal Protective
Equipment
• Process Safety
• Forklift Training
• www.osha.gov
•Blood-borne Pathogens
Standard started in this
decade
Emphasis Programs
•
•
•
•
•
•
Lead
Silica
Forklift
AMPUTATE
Canning
High Hazard
industries
Types of Inspections
• Imminent Danger
• Fatalities 800-321OSHA within 8 hours
• Catastrophes – 3 or
more
• Complaints – 5 days
Confined spaces could be
• Referrals
imminently dangerous.
• General Schedule
• Follow Up
Inspection Process
• Opening conference
• Records and written
safety program
review
• Workplace tour
• Closing conference
• Six month to
complete inspection
and issue citations.
Employer Rights
• See identification
• Know reason for
inspection
• Accompany during
inspection
• Take pictures
• Know what hazards
found
A CSHO checking for live
parts.
Employee Rights
• Employees have the right to:
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–
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A safe and healthful workplace
Know about hazardous chemicals
Information about injuries and illnesses in your workplace
Complain or request hazard correction from employer
Training
Hazard exposure and medical records
File a complaint with OSHA
Participate in an OSHA inspection
Be free from retaliation for exercising safety and health
rights
Employee Rights
• 11(c) protection
• Contest abatement
dates
• Informal conferences
• Records 300/301
• Private interviews
• Right to a rep in an
interview
Access to Medical Records
• 1910.1020: right to examine & copy records
• Examples of toxic substances and harmful
physical agents are:
– Metals and dusts, such as, lead, cadmium, and
silica.
– Biological agents, such as bacteria, viruses, and
fungi.
– Physical stress, such as noise, heat, cold,
vibration, repetitive motion, and ionizing and
non-ionizing radiation.
Complaints
• Workers may file a complaint with OSHA if
they believe a violation of a safety or health
standard, or an imminent danger situation,
exists in the workplace.
• Workers may request that their name not be
revealed to the employer.
• If a worker files a complaint, they have the
right to find out OSHA’s action on the
complaint and request a review if an
inspection is not made.
Employer Obligations
• Provide a workplace free from recognized hazards and
comply with OSHA standards
• Provide training required by OSHA standards
• Keep records of injuries and illnesses
• Provide medical exams when required by OSHA standards
and provide workers access to their exposure and medical
records
• Not discriminate against workers who exercise their rights
under the Act (Section 11(c))
• Post OSHA citations and abatement verification notices
• Provide and pay for PPE
Recordkeeping
Employers must:
 Report each worker death
 Report each incident that hospitalizes 3 or
more workers
 Maintain injury & illness records
 Inform workers how to report an injury or
illness to the employer
 Make records available to workers
 Allow OSHA access to records
 Post annual summary of injuries & illnesses
Violation Types
•
•
•
•
•
Serious – 7k
Willful – 70k
Repeat – 70k
Other – 7k
Failure to Abate -7k a
day
Unguarded machines are top
ten cited hazard
Elements of a Violation
•
•
•
•
Serious Hazard
Applicable Standard
Employee Exposure
Employer Knowledge
of Condition
Appeals Process
• Informal Conference – 15
days
• Notice of Contest – 15
days
• Administrative Law Judge
• OSHA Review
Commission
• US Appeals Court
• Supreme Court
Contacting OSHA
• They do not ask names
• No caller ID
• No follow-up on
website hits
• www.osha.gov
New DOL Head Nominated
• From DOJ
• MD Secretary of Labor
2007-2009
• Expected strong
positions in Wage Theft,
Apprenticeship
Programs, and
Whistleblowers
• Sequestration will
occupy first few months
Thomas Perez
Sequestration?
Sequestration
DOL cut 7.8-8.2%?
Continuing
Resolutions
Furloughs?
IMPACT: Training cut
to minimum
President’s Budget for 2013 calls
Less Travel.
for consolidation
Regions 9 and 10
Regions 7 and 8
Regions 1 and 2
Personnel Development
• OSHA Compliance Officers are changing
over
– Lot of retirements in the last several years
– Averaging a loss of 60 to 80 compliance
officers per year over each of the last five
years
– Most of the senior leadership (SES and GS15s) can or will retire within the next five
years
OSHA Leadership to Stay
• This is a first in the
history of OSHA.
• February 2013
• We've launched the new
Severe Violator
Enforcement Program
to target the worst of the
worst violators.
• We've issued a record
number of significant
and egregious
enforcement casesincluding the largest
fine in OSHA history.
• We've issued three
major standards
(Cranes, GHS,
Shipyards) .
We've strengthened the protection of
whistleblowers.
And we've launched several new
National, Regional and Local
Emphasis inspection programs.
Dr. Michaels – August 2013
•
•
“the agency intends to modernize
its Process Safety Management
Standard to address chemical
hazards in an effort to improve
refinery worker safety and decrease
the likelihood of catastrophic
events, OSHA administrator David
Michaels said during an Aug. 6
webchat.”
Management Commitment
The Small Business Regulatory
Employee Training
Enforcement Fairness Act review
Job Hazard Analysis
of the Injury and Illness
Prevention Program Standard was Hazard Controls
IH Survey
expected to begin “soon.”
Employee Participation
Accident Investigation
Compliance Audits
OSHA In Chicagoland
• 3 offices – Des Plaines,
• Aurora, Calumet City
• 2200 inspections total
~120 AMPUTATE NEP
~120 PIV LEP
~50 LEAD NEP
~40 SILICA NEP
~15 HEXCHROME
~15 COMDUST LEP
~15 GRAIN LEP
~50 LADDER LEP (new)
~15 FLAVORINGS NEP
~15 RECORDKEEPING NEP
New Leadership in Region V
• Nick Walters
• 20 Years Experience
• Two Criminal
Convictions Won
• Lockout Expert
• Exceptional fatality
investigator
• Auditor
• Area Director
• National Office
Enforcement Program
Many Media Events are
Straining OSHA Resources
Explosions 2013
•
•
•
•
•
•
Southern IL plant
Cary Paint Plant
Pekin Bottling Plant
Granite City Steel Plant
Plastics Plant (OH)
Sheboygan Chemical Plant
(WI)
• Martinville IL Sump
explosion
• “The explosion occurred
about 8:15 a.m. inside what
Dunn described as a paint
booth.”
Confined Space 2013
• Grain Bin Decatur
• Wheeling Tank
• Paper Mill Vat in MI
• Rescue Provisions are
being targeted
• Too often entry is
contracted out with the
rescues not planned.
Temporary Employee
• Carlos Centeno Death
• NPR, Mother Jones, Center to
Protect Public Integrity
• 50% of top ten employers
with amputations
•
•
•
•
Dr. Michaels – Feb 2013
Employer indifference to the working
conditions of many contingent
workers is simply unacceptable.
While some employers may believe
they are not responsible for
temporary workers, OSHA requires
that employers ensure the health and
safety of all workers under their
supervision and control.
We need to make it clear to
supervisors, staffing and temp
agencies, and other employers that
even if workers are temporary, they
are entitled to the same safety and
health rights and should be treated
no differently from other workers.
Reg Agenda
• Regarding OSHA standards, Michaels told August
6, 2013 webchat commenters a notice of proposed
rulemaking updating the Silica Standard would be
issued in the “near future,”
• Construction workers in confined spaces.
• Slips, Trips, and Fall Prevention : New
technologies and procedures have become available
to protect employees from these hazards. OSHA has
been working to update these rules to reflect current
technology.
• Electrical Power Transmission.
A Strong Enforcement Start
Penalty
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
$126,000
$72,800
$82,170
$51,190
$75,000
$142,100
$47,000
$196,000
$56,320
$545,000
$114,000
$63,000
$170,500
$115,000
$60,000
$105,000
$56,880
$44,000
$98,000
$41,200
$54,000
State
Major Issues
OH
OH
IL
WI
IL
IL
FL
IL
WI
OH
IL
OH
OH
OH
IL
WI
OH
OH
OH
IL
IL
Lead, PPE
Hex Chrome
Hearing Conservation Program, Welding, respirators
PPE, Hand Protection, face protection
Saws and Machine guarding
Confined Spaces
Fall Protection concrete job
Lead in masonry sandblasting
Foundry, guards, grinding, electrical
PSM, chemical release.
Lockout in Meatpacking
Conveyor death
Fall protection, guarding, Steel Mill
Trenching
PPE, fitness facility
Crane, fatality
Noise, foundry
Forklift, fall protection’
Forklift, cranes,
PPE, acid
PSM, Food
Other Trends
• Employee by Employee Citations
– PPE Standard
– LOTO procedures
• Enhanced Use of General Duty Clause
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–
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Combustible Dust
Ergonomics
Workplace Violence
New chemicals (not listed on Z tables)
Arc Flash – Arc Blast
Heat Illness
– Fall Protection
General Duty Clause
•
•
•
•
April 2013
WI
$19,250 Repeat
OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish
employment and a place of employment which were free from
recognized hazards that were causing or likely to cause death or
serious physical harm to employees in that:
• (a) Employees handling refractory ceramic fiber and performing work
such as mixing, were exposed to harmful levels of airborne refractory
ceramic fiber measured as high as 0.64 fibers per cubic centimeter of
air and were exposed to the hazards of lung cancer, mesothelioma, and
other adverse respiratory health effects including irritation and
compromised pulmonary function.
Recordkeeping
Scope of Documents for
Recordkeeping Inspection
• OSHA Forms 300, 300A and
301
• Medical records AT the clinic
you use
• Worker’s compensation records
• Insurance records
• Payroll/absentee records
• Company safety incident reports
• Company first aid logs
• Disciplinary records relating to
injuries and illness
54 | © 2013 Seyfarth Shaw LLP
DART rate
• 1.8 DART in 2011
• 3.5 TCIR in 2011
• Days Away Restricted
Transfer
• Total Incident Case
Rate
• #cases x
200,000/#hours
Incentives
• Evaluate policy. Address issues.
• Does it encourage employees to underreport in exchange
for prizes or other rewards?
• Are Employees Being Disciplined for getting hurt?
• Conduct employee interviews focused on whether
employees have been trained to report injuries or illnesses
or discouraged to report.
• OSHA favors rewards for reporting hazardous conditions,
for recommendations for safety improvements,
participation in safety committees, etc.)
Ergonomics
OSHA has announced that it will once again begin enforcing ergonomics
violations through the General Duty clause, Section 5(a)(1)
General Criteria:
• Conduct review of OSHA Logs, worker’s compensation, first aid to
identify nature of prior ergonomic-related injuries/illnesses
• Perform individual job assessments for ergonomic stressors
• Develop engineering or administrative controls to address stressors
• Conduct employee training on signs and symptoms of cumulative
trauma disorders (CTD’s) and establish employee reporting procedure
• Develop medical surveillance program to monitor CTD’s and provide
treatment
• Enforce use of engineering or administrative controls through
discipline
• Maintain appropriate OSHA recordkeeping, e.g., OSHA 300 Log and
supporting documentation
SVEP Criteria
FATALITY
NONFATALITY
NONFATALITY
Potential for release of
highly hazardous
chemicals (PSM)
EGREGIOU
S
> 1 W, R or FTA based on a serious violation related
to a death of an employee or three or more
hospitalizations
> 2 W, R or FTA based on high gravity serious
violations related to a High-Emphasis Hazard
> 3 W, R or FTA based on high gravity serious
violations related to hazards due to the potential
release of a highly hazardous chemical, as defined in
the PSM standard
Any Egregious Case
Employee Misconduct Defense
• 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
FY 2008 – FY 2012est
Inspections Conducted
FY 2008 – FY 2012
% Programmed vs. % Unprogrammed
FY 2008 – FY 2012
% Complaint Inspections
FY 2008 – FY 2012
% Follow-Up Inspections
FY 2008 – FY 2012
% Inspections In-Compliance
FY 2008 – FY 2012
% Total Violations Issued As Serious
FY 2008 – FY 2012
% NIC Inspections With Only Other-ThanSerious Violations Cited
FY 2008 – FY 2012
Average Penalty Per Serious Violation (Private
Sector)
Why the $ Jump?
•
•
•
April 22, 2010 OSHA issues revised penalty policy
OSHA believes penalties are too low to deter violations
Under revised policy:
1. OSHA will increase base penalty by 10% for any history of highgravity serious, willful and repeat violations over the last five
years
2. At informal conference area directors cannot solely:
•
•
Reduce or withdraw willful or repeat citations
Reduce the penalty by more than 30% Unless Sweeteners
3. Look back 5 years to employer citation history for Repeat
citations (previously 3 years)
FY 2008 – FY 2012
% Construction Inspections
FY 2008 – FY 2012est
Significant Cases
Note: FY11 & FY12 figures include cases under OSHA’s
revised significant case procedures and new penalty
FY 2008 – FY 2012
Average Hours Per Safety Inspection
FY 2008 – FY 2012
Average Hours Per Health Inspection
FY 2008 – FY 2012
Fatality Investigations
*Includes some catastrophes which, due to unfinalized OIS reports, cannot yet be separated out
Citation Avoidance
Ensure and training and
programs are up to date
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GHS Program,
Lock Out Tag Out
Confined Space Entry
Blood Borne Pathogen
Emergency Action Plan,
Powered Industrial Truck
Respiratory Protection
Hot Works
Process Safety
Management Program
Citation Avoidance
• Audits need to complete
Lockout: annual periodic
inspection of energy control
procedures is complete and
documented;
Confined Space: annual rescue
training for confined space rescue
employees;
Forklifts: conduct 3 year fork
truck driver recertification;
Fire: annual fire extinguisher
training, etc.
• Do you have software in
place that tracks training
deadlines?
Citation Avoidance
• Conduct Internal Site
Inspections
• Understand that
internal reviews are
discoverable by OSHA
and others
• Be prepared to promptly
fix and/or address what
you find
• Documenting Corrective
Action/Close Out is as
important as
finding action items
Citation Avoidance
• Use Outside Set of Eyes
for a fresh perspective
• Know and use your own
OSHA history
– Plant specific citations
– Company wide citations
• Large employers beware.
OSHA perceives a
corporate disconnect
External Audits
OSHA can subpoena these
audits.
Two Large Penalty cases
used the audit findings
against the company.
– Outside audits are not
privileged unless directed
by a counsel
– Company and Outside
Counsel can retain
consultants to create
arguments the audit may
not be discovered by
OSHA etc.
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.
Tips during Inspections
• 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
Letting a violation exist for
weeks during an OSHA
inspection can be used to
show duration.
OSHA Interviews
– Non-Management
Interviews
• Employee rights to
Union or other
Representative
• “Tell the truth”
– Management Interview
• Right To Company
Rep/Counsel
– Avoid the “casual”
interview
– Avoid Saying “I Don’t
Know”
Remember:
Everything is on
the record.
Do not engage in
idle conversation
concerning safety
Volks Decision - 2012
• In 2006, OSHA issued a
citation alleging that
Volks had failed as long
ago as 2002 to record
injuries on its Form 300
injury logs and to create
Form 301 injury reports. “No citation may be issued
• Volks claimed that the … after the expiration of six
citations were untimely months following the
because the Occupational
Safety and Health Act hasoccurrence of any
violation.”
a 6-month statute of
limitations.
All Crane Decision - 2012
• Appeals Court ruled that an
employee does not actually
need to be exposed to a
hazard before an employer
can be found in violation of
an OSHA standard.
• Rather, the Sixth Circuit held
that the fact that an
employee could have been
exposed to a hazard is
enough to find an employer
in violation of an OSHA
standard.
OSHA needs four
elements to cite:
- Hazard that could
cause harm
- Employee Exposure
- Employer
Knowledge of
Comtran August 2013
•
•
•
•
•
•
•
• The analysis must be different
when the violation at issue is
Comtran
committed by only a single
supervisor.
Big loss to OSHA in court
" The court first determined that • Six foot deep hole with 4 feet
of spoil at edge.
the foreman knew or should
have known about his own
misconduct, notwithstanding
his testimony that he was not
aware of the excavation and
cave-in hazards because he
became "lost" in his work“
Work Rule
Inspection
Training
Enforcement
BP Husky 2013
•
•
41 Willfuls vacated
“ Because the AVD improperly imposes a
requirement on employers not found in the
cited standards, the Secretary failed to
establish BPP and BP-Husky were not in
compliance with the appropriate
RAGAGEP.”
•
1) How many accidents resulted not
complying with the consensus standard.
2) What are other companies that are
complying with the rule.
3) What is the company's specific
knowledge of the rule
4) Why are they not complying to the rule?
•
•
•
FY 2012
Top 10 Most Cited Standards
(General Industry)
1. Hazard Communication
2. Respiratory Protection
3. Electrical, Wiring
Methods
4. Powered Industrial
Trucks
5. Lockout/Tagout
6.
Electrical, General
Requirements
7. Machine Guarding
8. Personal Protective
Equipment
9. Guarding Floor & Wall
Openings & Holes
10. Bloodborne Pathogens
Quick Quiz
• How much can a Willful Violation be? ____
• Informal Conferences can be requested within ___
days of receiving a citation.
• OSHA must issue a citation within __ months of
its opening conference.
• Catastrophes of ___ or more hospitalized must be
reported to OSHA within ____ hours.
• What is the address for the OSHA web site?
_____________