what to expect from osha in 2011 and beyond … mark a. lies ii 131 s. dearborn street, suite 2400...

What To Expect From OSHA In 2011 What To Expect From OSHA In 2011 And Beyond …And Beyond …

Mark A. Lies II

131 S. Dearborn Street, Suite 2400

Chicago, IL 60603

[email protected]

(312) 460-5877

Presenter:Presenter:

Mark A. Lies, II

Mark is a Labor and Employment Attorney and Partner with Seyfarth Shaw. Mark can be reached at (312) 460-5877, [email protected].

He specializes in Occupational Safety and Health Law and related employment law and personal injury litigation. He graduated from the University of Notre Dame in 1968 and DePaul University School of Law in 1974. He was a Commissioned Officer in the U.S. Navy and is a Vietnam Veteran.

3 | © 2011 Seyfarth Shaw LLP

Program Objectives

• Discuss OSHA enforcement initiatives and trends.• What to expect with a new administration.• New penalty and liability policies.• How to reduce the risk of OSHA citations.• How to manage an OSHA inspection.


OSHA Liability

• Initially, employer responsible for its own employees• Employer had to ensure that its employees were protected

against:►“Recognized Hazards” To Employee Safety and Health (General Duty

Clause)►Hazards Identified In Specific Regulations

(29 CFR 1926, e.g. falls, electrical, lead, silica, etc.) (Construction Industry)(29 CFR 1910, e.g. forklifts, confined space, noise, etc.) (General Industry)


OSHA Liability

• Liability was expanded under “Multi-Employer Workplace Doctrine”

• Now, each Employer is potentially responsible for the safety and health of another Employer’s Employee, if the Employer:

►Creates the hazard►Exposes an Employee to the Hazard►Is responsible to correct the hazard, or►Is the controlling Employer on the site

• Liability can involve citations (against Employer) and criminal prosecution (against Employer and Management Representatives)


Many Different Categories of Employers and Employees On-Site

• Owner

• General Contractor

• Subcontractors

• Leased/Borrowed Employees

• Temporary Employees

• Consultants

Key: OSHA is looking at the workplace as a whole – so should you.

Critical Issues:

• Contractual relationship

• Exercise of control over “means and methods”

• Imminent Danger


Aggressive Enforcement

THE NEW OSHA:• “OSHA is back in the enforcement business” and “There is a

new sheriff in town”►Sec. of Labor Hilda Solis

• “[The Secretary’s Statement] is not an abstract wish; it is a stern description of how OSHA is working – and I take this phrase seriously.”

• “We will shame you into compliance”►David Michaels – Asst. Sec. of Labor - OSHA

• Translation: OSHA believes the best path to compliance is through aggressive enforcement.



• Use of interpreters

• Emphasis on repeat citations►Cautionary tale:

Use of knowledge of previous inspection to justify willful citation

• Requests for Root Cause analysis and company insurance audits

• Severe Violator Enforcement Program

• Revised Penalty Policy

• Non-English speaking employees

• Recordkeeping/Ergonomics/Dust/Live Electrical Work

• Issuance Proposed Rules, e.g. Fall Protection Systems, May 24, 2010 (29 CFR 1910)



• Employee by Employee Citations►PPE Standard►LOTO procedures

• Enhanced Use of General Duty Clause►Combustible Dust►Ergonomics►Workplace Violence ►New chemicals (not listed on Z tables)


• September 30, 2009 OSHA announces Recordkeeping National Emphasis Program (NEP)

NEP Impact on Other Industries• OSHA inspectors receive intensive training on recordkeeping.• OSHA will inspect OSHA 300 Logs in every inspection.• Increased recordkeeping citations with enhanced penalties.

OSHA Recordkeeping


Scope of Documents for Recordkeeping Inspection• OSHA Forms 300, 300A and 301• Medical records• Worker’s compensation records• Insurance records• Payroll/absentee records• Company safety incident reports• Company first aid logs• Alternate duty rosters• Disciplinary records relating to injuries and illness

OSHA Recordkeeping


Scope of Recordkeeping Inspection• Interviews of designated recordkeeper, employees,

management, first aid providers and healthcare professionals.

• Limited walk around inspection of main plant operations area.

• Possible expansion of scope of inspection or referral for inspection to other plant areas that may pose risks.

►Plain view doctrine

OSHA Recordkeeping


Civil• Potential citations for under reporting or other errors

►Other than serious►Serious►Willful (violation-by-violation citation)►Repeat►Failure to Abate

Criminal• Liability of Employer

• Liability of Management Representative for false certification

OSHA Recordkeeping


Analysis of Employer Incentive Programs• Evaluate policy.

• Does it encourage employees to underreport in exchange for prizes or other rewards.

• Conduct employee interviews focused on whether employees have been trained to report injuries or illnesses or discouraged to report.

• OSHA favorably considers incentive programs that award safety recommendations or enhancements (financial or other rewards for reporting hazardous conditions, forrecommendations for safety improvements,participation in safety committees, etc.)

OSHA Recordkeeping


Severe Violator Enforcement Program (SVEP)

• April 22, 2010 OSHA announces Severe Violator Enforcement Program (SVEP)

• Concentrates OSHA’s enforcement efforts on employers with a “demonstrated indifference” to safety.



• “Demonstrated indifference” means:► Willful citations► Repeated citations► Failure to abate violations

• Plus1. A fatality or catastrophe

2. A high-emphasis industrial operation or process (e.g. fall protection, amputation, dust, silica, trenching, lead).

3. Process safety management covered facilities

4. Prior egregious enforcement



• Severe violator gets heightened scrutiny including:1. Follow up inspections2. Inspections at other worksites operated by the employer3. Increased P.R., including news releases and communications with corporate

headquarters4. Settlement would require increased safety obligations (e.g. hire additional

safety personnel, injury/illness reporting obligations, self auditing requirements)

5. Agree to Section 11(b) language which allows for future enforcement through contempt proceedings

6. Elimination of certain citation penalty reductions

• In effect a “blacklist” and guilty until proven innocent.


Revised Penalty Policy

• April 22, 2010 OSHA issues revised penalty policy• OSHA believes penalties are too low to deter violations

► OSHA wants to be like EPA

• Under revised policy:1. OSHA will increase base penalty by 10% for any history of high-

gravity serious, willful and repeat violations over the last five years2. At informal conference area directors cannot:

• Reduce or withdraw willful or repeat citations• Reduce the penalty by more than 30%

3. Look back 5 years to employer citation history for Repeat citations (previously 3 years)


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


Native Language Requirements

April 28, 2010 OSHA issued a memorandum that all training must be given in a language that the employee understands

• Certain OSHA regulations require “training”, others require Employer to prove training was “effective” or “understood”

• OSHA will look at how employer provides work instructions to employees and whether it is different than safety training (e.g. safety training in English but supervisor gives work instructions in Spanish).

• OSHA will interview employees to determine whether they understand English only training (e.g. if employee cannot speak English but all training documents are English only, you have a problem).

• Employers must determine whether employees are literate• Bilingual trainers and documentation may be required to prove training

was compliant.


Employee Literacy Challenges

• OSHA inspections revealing increasing lack of Employee Literacy

• Employees don’t “understand” training• English Speaking employees are unable to read safety and

health programs• OSHA challenges the particular language in safety programs• Employers are rewriting safety programs to level of fourth

grade educational comprehension• Employers utilize more visual aids such as pictograms


Criminal Law Liability

OSHA• Potential liability if:

►Fatality►Violation of specific regulation►Violation was willful, and ►Violation caused fatality

• Penalty►6 months imprisonment, and/or►$500,000 fine per fatality for employer►$250,000 fine per fatality for individual

NOTE: No Miranda Warnings Necessary


Criminal Law Liability

OSHA• Obstruction of justice for interfering with inspection• Falsification of records• Lying to federal inspectorSTATE LAW• Murder• Manslaughter• Reckless Endangerment• BatteryLiability for Employer and Manager


Whistleblower Laws

• Potential Employer Liability If:► Employee engages in “Protected Activity” (e.g., makes complaint about safety

or health violation to Employer; files complaint with OSHA; participates in OSHA inspection), and

► Employee Suffers “Adverse Action” (e.g., termination, discipline, loss of benefits), and

► Employer takes Adverse Action and Retaliates against Employee because of Protected Activity

► Employee may File 11(c) Complaint with OSHA seeking damages

► OSHA will investigate complaint

► If OSHA finds reasonable cause that there was retaliation, case may be filed in Federal Court

► All States have Whistleblower Laws that may apply


Where do we go from here?

• 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.


OSHA Attempt to Reduce Its Burden of Proof

• OSHA Burden of Proof on Citation►Existence of a hazard (Defined by a regulation or general duty clause)►Employee exposed to hazard►Employer “knew” or “should have known” of hazard and exposure

(Requires knowledge of a Management Representative)

• OSHA Attempting to Reduce Its Burden►To prove employer knowledge by lowering definition of management

representative



• Who is a Management Representative?►Defined by Job Title►Defined by Job Responsibilities►Authority to Hire, Fire and Control the Work

• OSHA is trying to elevate Hourly Employees to status of Management Representative

• OSHA seeking “admissions” of Violations through Hourly Employees



• Critical to establish Responsibilities of Employee as to whether Employee has any Management Authority

• Confirm the lines of Management Authority that Hourly Employee is not authorized to hire, fire or discipline

• Confront OSHA during Inspection as to whether it considers Hourly Employee to be Management Representative, if so, Employer entitled to attend OSHA Interview of Employee


Unavoidable Employee Misconduct

• How do we establish this defense?►A good hazard assessment►Training—there may be a cultural, literacy or language barrier.►Need to use translators, interpreters.►Need enforcement – this is where most employers fail.►Maintain records of enforcement/discipline.


How to Reduce the Risk of OSHA Citations

• Make Sure Written OSHA Programs are current and up to date

Ex.

Hazard Communication Program, Lock Out Tag Out Program, Confined Space Entry Program, Blood Borne Pathogen Program, Emergency Action Plan, Powered Industrial Truck Program, Respiratory Protection Program, Process Safety Management Program



• Make Sure the Company is Following each of its Written Programs

Ex.Current Chemical Inventory and Current MSDS's, Machine Specific Energy Control Procedures for each piece of equipment; Confined Spaces have been evaluated and labeled; Employees using respirators have been fit tested



• Make Sure Periodic Requirements Under Specific OSHA Standards Are Being Met

Ex.LOTO: annual periodic inspection of energy control procedures is complete and documented; annual rescue training for confined space rescue employees; conduct 3 year fork truck driver recertification; annual fire extinguisher training, etc.

• Do you have software in place that tracks training deadlines?



• Make Sure Training is Documented for all Covered Employees: OSHA standards typically mandate employee training

Ex.

Emergency Evacuation Plan and Drills, LOTO for affected employees; Hazard Communication



• Conduct Internal Compliance Reviews:Ex.Safety Inspections/Walk through (generally find physical conditions)

• 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



• Internal Audits Continued

• Use Auditors from other departments for a fresh set of eyes

• Know and use your own OSHA history►Plant specific citations►Company wide citations

Large employers beware. OSHA perceives a corporate disconnect.



• Know and audit conditions covered by applicable national and local emphasis programs

• Make sure Audit Reports are properly handled: Confidentiality



• External Audits

Ex.Audit conducted by outside safety consultant

• Privilege issues with Outside Audits

►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.



• Make sure audit reports are properly handled

• Be Prepared to promptly fix or address what you find

• Documenting Corrective Action/Close Out is as important as what you find



• Focus on hazards that are at core of your business.

• Focus on hazards that are driving your OSHA recordables.



• Most Frequently Cited OSHA Standards (Pay Attention to Relevant Areas)

►Hazard Communication (Employee Training and MSDS’s)

►Lockout Tagout (Authorized Employee Training)

►Lockout Tagout (Machine Specific LOTO Procedures)

►Personal Protective Equipment (Certification of Hazard Assessment)

►OSHA 300 Log Recordkeeping

►Electrical Safety (Safe Work Practices, AEC Flash Protection)

►Powered Industrial Trucks (Daily Truck Inspections, Operator Retraining)

►Machine Guarding


Inspection Management

• Increased enforcement and penalties make inspection management more critical than ever.

• The most effective defenses are developed Before and During an OSHA inspection, not after the inspection

►Why?


Inspection Management (cont.)

• Inspection Plan – Basic Blocking Tackling(1) Point person and backup/weekend person (Murphy’s Law

is that accidents will happen during the night shift and on weekends).

(2) Relevant written OSHA policies and logs should be readily available. Keep copy in easily accessible binder

– Update annually or as otherwise required



• When OSHA Arrives:►Politely receive the compliance officer.►Show compliance officer to conference room/empty

office.►Immediately notify the point person.►Point person takes control of the inspection is

responsible for all communications with Compliance Officer and shadows Compliance Officer throughout inspection.

►First impression is important.



• Two Keys to Successful Inspection Management(1) Focus

(2) Control

Inspection FocusDetermine why OSHA is inspecting

Types of inspections:(1) Fatality/catastrophe

(2) Employee complaint

(3) Programmed– Local National emphasis program– Wall to wall inspection



• The Reason OSHA is Inspecting Drives the Scope of the Inspection

• Once You Determine the Scope, Control Inspection by Limiting it to Only Those Items Within the Scope



• Fatality/Catastrophe Inspections

►Fatality/catastrophe inspections involve the highest risk of significant citations

►Highly recommend involving counsel in the on-site inspection as early as possible

►Limit the inspection to the safety issues surrounding the accident►Be aware of emotional issues surrounding serious accidents and

try not to let them negatively impact the inspection


Inspection Management(cont.)

• Employee Complaints

►Compliance Officer should give employer a copy of the specific complaint.

►If the Compliance Officer does not, ask for it. Employer is entitled to a copy.

►Complaint items should drive the scope of the inspection.

Note: You are not entitled to know identity of complaining employee and it does not matter.



• 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.

• Admissions

►Never admit to a violation (“I’ll check into that”).►Never admit you don’t have something (“let me get back to you on

that”).



• 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



• Employee Interviews►Non-Management Interviews

Explain employee rights Conduct your own investigation

►Management Interview Right To Counsel Binding Admissions

►Avoid the “casual” interview ►Remember: Everything is on the record. Do not engage in idle

conversation concerning safety issues.



• Document Control Is Important

► No Such Thing As A “Safety Program” Ask Compliance Officer which specific program he/she is looking for.

► Only Provide OSHA with Documents That Are Within The Scope Of The Inspection.

► OSHA Can Issue Citations For Violations Relating To Any Document The Employer Gives To Them.

► General Rule Of Thumb: Less Is More



• How to Push Back► If Compliance Officer seeks information beyond the scope of the

inspection:(1) Inquire how/why that relates to the inspection;

(2) If OSHA insists on obtaining the information, tell them you are “not denying access” but need to get authority before responding to OSHA’s request;

(3) Involve counsel who can work with Area Director and Solicitor’s office to define the scope.

Again, less is often more.


Take Away

OSHA has changed and, in response, industry must change how it approaches OSHA

compliance and enforcement.


Thank you!

Mark A. Lies II131 S. Dearborn Street

Suite 2400Chicago, IL 60603

[email protected](312) 460-5877

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what to expect from osha in 2011 and beyond … mark a. lies ii 131 s. dearborn street, suite 2400...

Documents

new osha

employees employer

osha inspection

osha enforcement initiatives

osha translation

risk of osha citations

employer responsible

general industry slide