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Neil H. Wasser Constangy, Brooks & Smith, LLC OSHA Inspections in the Real World
©SHRM Have a Written Procedure On What To Do If OSHA Knocks? Compliance Officer’s Arrival > Check credentials > Warrant or Consent Opening Conference > Scope of inspection > Safety or health > Complaint or comprehensive > Identify trade secrets > Control documents
©SHRM What To Do If OSHA Knocks (continued) Walk Around Inspection > Plain view > Employer / employee reps > Interviews Where and when? Who can be present? Taping (CPL 2.98); written statements > Photographs / video > Samples > Correct on the spot Closing Conference Notice of Contest Informal Conference Practice
©SHRM Keep Up with OSHA Developments Quick Takes – Bi-monthly e-memos describing what’s new. Sign up on the OSHA Home Page. (Over 57,000 subscribers.) Quick Start – A step-by-step guide to help employers in general manufacturing, wholesale and retail industry identify major OSHA requirements and guidance materials. OSHA Small Business Handbook – Designed to help small business employers “achieve an in compliance status before an OSH inspection.”
©SHRM What Events Most Often Bring OSHA To Your Facility? Complaint / Referral Fatality / Catastrophe (§ ) Follow-Up (to Verify Abatement) Special Emphasis Programs Site Specific Targeting
©SHRM Number of Federal OSHA Inspections
©SHRM OSHA Complaints Year Total Inspections 35,97437,61439,81739,16738,71438,57939,324 % Complaint Inspections 23%21%20%21%20%19%18%
©SHRM Complaint Inspections OSHA complaint-based inspections represent approximately 1/5 th of all inspections. April OSHA began allowing employees to file OSHA complaints on-line. A 19 question form – 10 minutes. > OSHA receives approximately 5,000 electronic complaints per year. OSHA’s website receives between 3 and 4 million visits per month.
©SHRM Prevent Your Next Complaint Inspection Review your company’s procedures for employees to raise safety and health concerns. Are they well publicized, easy to use, confidential, credible? Is there any fear of reprisal? Are supervisors trained so that they understand “complaints are good?” Review your work order system. Are safety issues given priority? Are work orders timely processed? Is feedback provided?
©SHRM Be Sensitive to Labor Unrest General Accounting Office Report, August OSHA Inspections at Establishments Experiencing Labor Unrest. The report found that establishments experiencing labor unrest are approximately 6.5 times more likely to be inspected by OSHA than establishments not experiencing labor unrest.
©SHRM Prepare for an On-Site Inspection Haz Com / Written Program (e)(1) Electrical Wiring Methods LOTO / Energy Control Program Electrical General Respiratory Protection Haz Com Powered Industrial Trucks LOTO / Energy Control Program Electrical Wiring Methods Walking/Working Surfaces Machine Guarding Exit Routes / Evacuation General IndustryGrocery Stores 2007 General Industry v. Your Industry
©SHRM Finding the Most Frequently Cited Standards For Your SIC Look up your SIC. Search your industry. Perform a self-assessment. Utilize effective closure.
©SHRM OSHA’s SST Program Released May 14, 2007 – targeting approximately 4,150 high-hazard worksites Injury and Illness data collected by the 2006 Data Initiative is used for the 2007 SST program. Primary inspection list: workplaces with a DART Rate of 11 (formerly 12) or higher, or a DAFWII rate of 9 or higher. Secondary inspection list: workplaces with a DART Rate of 7 (but less than 11), or a DAFWII rate of 4 or higher (but less than 9). Failed to respond to the 2006 Data Initiative by 4/7/07? A sampling will be added to the Primary Inspection List.
©SHRM Take Steps to Prevent Repeat Citations Repeat violation = when a new citation is issued to an employer who has been previously cited for a substantially similar condition within the last 3 years. OSHA FIRM, Chapter III. > The penalty for a repeat violation is not more than $70,000 and not less than $5,000. Repeat violation prevention: > Review your company’s past citations and ensure that all cited items have been abated and have remained abated. > Examine other equipment and other facilities. NOTE: There is no statutory limitation on the length of time that a citation may serve as the basis for a repeat. Hackensack Steel Corp., OSHA Rev. Comm., 2003.
©SHRM Take Steps To Prevent Willful Violations Willful violation = awareness of a violation or plain indifference to a known hazardous condition. Penalty of not more than $70,000 and not less than $5,000. Willful violation prevention: Verify that all internal and external audits / inspections have been closed out. Workers’ compensation carrier audits. Fire safety audits. –www.osha.gov/pls/oshaweb/owadisp.show_document?p_table= FEDERAL_REGISTER&p_id =16434&p_text_version=FALSEwww.osha.gov/pls/oshaweb/owadisp.show_document?p_table= FEDERAL_REGISTER&p_id Supervisor knowledge.
©SHRM Practice Good Audit / Inspection Management Clearly defined scope. Documentation to reflect scope. Commitment of resources in advance. Qualified personnel to perform the audit / inspection. Documented closure of the audit / inspection. Verification of closure. Preliminary feedback from external auditors. Interim controls. Timely abatement following a schedule with time lines and designated responsibilities. Attorney-client privilege.
©SHRM Notice of Contest 29 U.S.C. §659(a) provides that employers have 15 working days (from citation receipt) to file a Notice of Contest. Failure to file within such time means that “the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.”
©SHRM Establish Effective Mailroom Procedures The OSHA Review Commission has not been historically tolerant of untimely filings of Notice of Contest. > Do you have orderly mailroom procedures for handling important mail? > Are they communicated and enforced? > If not, your name could be Mudd.
©SHRM Injury and Illness Rates 1998 – I/I rate of 6.7 cases per 100 FTEs. LWDII = – I/I rate of 6.3 cases per 100 FTEs. LWDII = – I/I rate of 6.1 cases per 100 FTEs. LWDII = – I/I rate of 5.7 cases per 100 FTEs. LWDII = – I/I rate of 5.3 cases per 100 FTEs. LWDII =2.8 (new recordkeeping rules) 2003 – I/I rate of 5.0 cases per 100 FTEs. LWDII = – I/I rate of 4.8 cases per 100 FTEs. LWDIl = – I/I rate of 4.6 cases per 100 FTEs. LWDII = – I/I rate of 4.4 cases per 100 FTEs. LWDII = 2.3 Data issued Oct. 17, 2007.
©SHRM Behind the Numbers Recordable Cases > 13.3% of the cases involved individuals employed less than 3 months. Fatalities > Highway accidents - 23% of all fatalities. > Contact with objects – 17%. > Falls – 14%. > Assaults and violence – 13%.
©SHRM Transportation Related Accidents / Fatalities NHTSA reports that 1/5 drivers still do not wear seatbelts. 63% of the people killed in car accidents are not wearing seat belts. NHTSA estimates that 100,000 accidents per year are the direct result of driver fatigue. Motorcycle fatalities soared from 2,116 in 1997 to 4,552 in 2005 as other roadway deaths declined. NHTSA says that helmet use dropped from 71% in 2000 to 51% in 2006.
©SHRM Practice Good OSHA Recordkeeping and Study Trends OSHA's Recordkeeping Handbook is posted on the OSHA website. ook/index.html ook/index.html Your OSHA 300A Summary is to be posted from Feb. 1 – April 30. Analyze your injury and illness trends and develop programs to address them.
©SHRM Examine Your Incentive Programs Do they discourage accurate reporting of injuries and illnesses? Size or amount of incentive. Peer pressure. Or, do they encourage employees to focus on safe behaviors? Consider input measures in addition to output measures. E.g., percent of all training classes attended, scores on departmental inspections, number of safety recommendations identified and implemented, percent of employees wearing PPE.
©SHRM Safety and Health Training Our ugly secret. Hermann Ebbinghaus (1850 – 1909) First to describe primacy and recency effects. Learning meaningful / interesting material takes about a 1/10th the time of learning non-sense / boring material. Von Restorff Effect – techniques that increase novelty improve recall. Exaggerate, bizarre, unique, bold.
©SHRM Take Steps to Improve Your Next Safety Training Class Sit in the last row of a class and observe. The next training class. Qualified instructor – appropriate language / educational level. Get their attention – clear beginning. Review relevant prior learning. Emphasize what’s important – handouts, slides. Present information in organized / meaningful manner. Utilize / teach memory coding techniques. Quizzes to assess training effectiveness. Repetition. Repetition. Repetition. OSHA Training Requirements Publication –
©SHRM Did You Know that the penalty for: Knowing and for profit reproduction of the character “ Smokey Bear ” - (18 U.S.C. § 711); Knowing and for profit reproducing the character “ Woodsy Owl ” or the slogan “ Give a Hoot, Don ’ t pollute ” - (18 U.S.C. § 711a); Using an aircraft or motor vehicle to hunt,... wild, unbranded... Burro running at large on any public land - (18 USC §47); and Wearing the 4-H Club emblem for the purpose of inducing belief that one is a member of or associated with the 4-H Club ” - (18 U.S.C. § 707). Is a fine and / or “ imprisoned for not more than six months. ” Join the Debate
©SHRM Final Thoughts Develop a Written Procedure on What to Do If OSHA Knocks. And practice. Ensure that your company has effective mechanisms for employees to raise safety concerns. Review your company’s citation history and confirm abatement status. Remain current on what’s going on at OSHA. Practice accurate recordkeeping and analyze trends to reduce injuries and illnesses. Review safety training program effectiveness.
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