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OSHA Regulations and the Law © 2015 Fox Rothschild OSHA Regulations And The Law Presented by: Wayne E. Pinkstone, Esq. 2015 ACLAM Forum.

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Presentation on theme: "OSHA Regulations and the Law © 2015 Fox Rothschild OSHA Regulations And The Law Presented by: Wayne E. Pinkstone, Esq. 2015 ACLAM Forum."— Presentation transcript:

1 OSHA Regulations and the Law © 2015 Fox Rothschild OSHA Regulations And The Law Presented by: Wayne E. Pinkstone, Esq. 2015 ACLAM Forum

2 OSHA Regulations and the Law © 2015 Fox Rothschild Background  Under the Occupational Safety and Health Act of 1970 (the “Act”), the Occupational Safety and Health Administration (“OSHA”) is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by the agency for safe and healthy workplaces.

3 OSHA Regulations and the Law © 2015 Fox Rothschild Who OSHA Covers  Federal standards that cover private sector employers and employees in all 50 states and the District of Columbia  25 states have approved safety and health plans - Most are identical to the federal OSHA rules

4 OSHA Regulations and the Law © 2015 Fox Rothschild Is it Work-Related  If an employee is injured or becomes ill because of a job-related activity or exposure, OSHA applies.  An injury or illness is work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”

5 OSHA Regulations and the Law © 2015 Fox Rothschild Is it Work-Related  Injuries and illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer."

6 OSHA Regulations and the Law © 2015 Fox Rothschild Is it Work-Related  Exceptions: - Employee present as member of public - Signs or symptoms that surface at work but result from a non-work-related event or exposure outside the workplace - Is the result of an employee doing personal tasks at the establishment outside of assigned work hours

7 OSHA Regulations and the Law © 2015 Fox Rothschild What is the Work Environment?  Work environment is "the establishment and other locations where one or more employees are working or are present as a condition of their employment.”  The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.

8 OSHA Regulations and the Law © 2015 Fox Rothschild Overview  Workplace Standards - General industry standards: applicable to all workplaces - Worksite specific standards

9 OSHA Regulations and the Law © 2015 Fox Rothschild General Duty Clause  “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

10 OSHA Regulations and the Law © 2015 Fox Rothschild Relevant Standards  General Industry Standards: Applicable to All Workplaces - Hazard Communication - Bloodborne Pathogens - Emergency Action Plan - Walking/Working Surfaces - Medical First Aid

11 OSHA Regulations and the Law © 2015 Fox Rothschild Hazard Communication  Employers with employees who may be exposed to hazardous chemicals in the workplace must prepare and implement a written Hazard Communication Program and comply with other requirements of the standard.

12 OSHA Regulations and the Law © 2015 Fox Rothschild Hazard Communication  The program must include labels on containers of hazardous chemicals, safety data sheets (SDSs) for hazardous chemicals, and training for workers.  The written program requires employers to maintain a list of the hazardous chemicals known to be present in the workplace.

13 OSHA Regulations and the Law © 2015 Fox Rothschild Hazard Communication  Employers are required to ensure that containers in the workplace are labeled.  Any container of hazardous chemicals in the workplace must at a minimum include the product identifier and general information concerning the hazards of the chemical.  Must maintain copies of SDSs for all hazardous chemicals present in the workplace and ensure access by employees

14 OSHA Regulations and the Law © 2015 Fox Rothschild Hazard Communication  Employers are required to train employees on the hazardous chemicals in their work area before their initial assignment and when new hazards are introduced into the work area.  Workers must understand that they are exposed to hazardous chemicals.

15 OSHA Regulations and the Law © 2015 Fox Rothschild Exposure Limits  OSHA sets permissible exposure levels (PEL) for certain chemical agents and requires a written plan for safe storage and handling: - Ethylene Oxide – 8 hour PEL is 1 part per million - Formaldehyde -- 8 hour PEL is 0.75 ppm - Anesthetic gases - Radiation Standards

16 OSHA Regulations and the Law © 2015 Fox Rothschild Emergency Action Plan  Describes the actions employees should take to ensure their safety in a fire or other emergency situation.  Employers with 10 or more employees must have a written emergency plan when required by a standard.

17 OSHA Regulations and the Law © 2015 Fox Rothschild Emergency Action Plan  Handling of toxic chemicals  Escape procedures and escape route assignments  Special procedures for employees who perform or shut down critical operations  Systems to account for all employees after evacuation and for information about the plan  Rescue and medical duties for employees who perform them.  Means for reporting fires and other emergencies.

18 OSHA Regulations and the Law © 2015 Fox Rothschild Additional Standards  Fire Safety. OSHA recommends that all employers have a Fire Prevention Plan. A plan is mandatory when required by an OSHA standard (Ethylene Oxide).  Exit Routes  Walking/Working Surfaces  Medical and First Aid. OSHA requires employers to provide medical and first-aid personnel and supplies commensurate with the hazards of the workplace.

19 OSHA Regulations and the Law © 2015 Fox Rothschild Inspections  Inspections - Inspections are conducted without advance notice. - Under special circumstances, OSHA may give less than 24 hours notice to employers.

20 OSHA Regulations and the Law © 2015 Fox Rothschild Inspections  If an employer refuses to admit an OSHA compliance officer or if an employer attempts to interfere with the inspection, the Act permits appropriate legal action, such as obtaining a warrant to inspect.

21 OSHA Regulations and the Law © 2015 Fox Rothschild Inspections What are OSHA’s inspection priorities?

22 OSHA Regulations and the Law © 2015 Fox Rothschild Imminent Danger  Any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.  These conditions receive the highest priority.

23 OSHA Regulations and the Law © 2015 Fox Rothschild Catastrophes and Fatal Accidents  Investigation of fatalities and accidents resulting in a death or hospitalization of an employee.  Employer must report such catastrophes to OSHA within 8 hours.

24 OSHA Regulations and the Law © 2015 Fox Rothschild Reporting Requirements  New Rules - Specific injuries must be reported to OSHA  Amputations  Loss of an eye - Overnight hospitalization of single employee within 24 hours - Fatalities within 8 hours - Additional enforcement expected - OSHA will publicize on website

25 OSHA Regulations and the Law © 2015 Fox Rothschild Reporting Requirements  Must report the following information: - Establishment name - Location of the work-related incident - Time of the work-related incident - Type of reportable event (i.e., fatality, in-patient hospitalization, amputation or loss of an eye) - Number of employees who suffered the event - Names of the employees who suffered the event - Contact person and his or her phone number - Brief description of the work-related incident

26 OSHA Regulations and the Law © 2015 Fox Rothschild Complaints and Referrals  Formal employee complaints of unsafe or unhealthy working conditions and to referrals from any source about a workplace hazard.

27 OSHA Regulations and the Law © 2015 Fox Rothschild Programmed Inspections  Aimed at specific high-hazard industries, workplaces, occupations, or other industries identified in OSHA’s current inspection procedures.

28 OSHA Regulations and the Law © 2015 Fox Rothschild Follow-up Inspections  Determines if the employer has corrected previously cited violations.

29 OSHA Regulations and the Law © 2015 Fox Rothschild A Special Note on Off-Site Investigations  Phone/Fax Investigations. - OSHA responds more quickly to lower- priority hazards using a phone/fax approach. - The agency concentrates resources on the most serious workplace hazards. - The agency telephones the employer.

30 OSHA Regulations and the Law © 2015 Fox Rothschild Special Note on Employee Rights Under OSHA  No private right of action. - Potential enforcement by Secretary of Labor.  Protection from discrimination and retaliation of any kind from exercising rights under OSHA.  Broad right of access to medical and exposure records within 15 days of request.

31 OSHA Regulations and the Law © 2015 Fox Rothschild What does the inspection process involve?

32 OSHA Regulations and the Law © 2015 Fox Rothschild Inspector’s Credentials  Employers should always ask to see the compliance officer’s credentials.  Compliance officers may not: - collect a penalty at the time of the inspection; or - promote the sale of a product or service at any time.

33 OSHA Regulations and the Law © 2015 Fox Rothschild Opening Conference  The compliance officer - explains how the establishment was selected; - the likely scope of the inspection; - the purpose of the visit and the standards that apply;

34 OSHA Regulations and the Law © 2015 Fox Rothschild Opening Conference (cont’d.) - gives the employer a copy of any employee complaint that may be involved (with the employee’s name deleted, if the employee requests anonymity); - asks the employer to select an employer representative to accompany the compliance officer during the inspection; and

35 OSHA Regulations and the Law © 2015 Fox Rothschild Opening Conference (cont’d.) - gives an authorized employee representative the opportunity to attend the opening conference and accompany the compliance officer during the inspection.

36 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough  After the opening conference, the compliance officer and accompanying representatives - proceed through the establishment to inspect work areas for safety and health hazards; - determine the route and duration of the inspection;

37 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.) - make every effort to minimize any work interruptions; - observe safety and health conditions and practices; - consult with employees privately, if necessary; - take photos, videotapes and instrument readings;

38 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.) - examine records; - collect air samples; - measure noise levels; - survey existing engineering controls; and - monitor employee exposure to toxic fumes, gases and dusts.

39 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.)  An inspection tour may cover part or all of an establishment, even if the inspection resulted from a specific complaint, fatality or catastrophe.  During the inspection tour, the compliance officer will - keep all trade secrets observed confidential;

40 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.) - consult employees during the tour; - inspect records of deaths, injuries, and illnesses that the employer is required to keep - make sure the OSHA workplace poster (OSHA 3165), which explains employees’ safety and health rights, is prominently displayed;

41 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.) - request a copy of the employer’s Hazard Communication Program and Emergency Action Plan; - make sure employers establish a written, comprehensive communication program that includes provisions for  container labeling;  material safety data sheets (“MSDS”); and  employee training program.

42 OSHA Regulations and the Law © 2015 Fox Rothschild Walkthrough (cont’d.) - point out to the employer any unsafe or unhealthy working conditions observed; and - discuss possible corrective action if the employer so desires.

43 OSHA Regulations and the Law © 2015 Fox Rothschild Closing Conference  At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer and/or the employees’ representative.

44 OSHA Regulations and the Law © 2015 Fox Rothschild Closing Conference (cont’d.) - discusses with the employer all unsafe or unhealthy conditions observed during the inspection; - indicates all apparent violations for which he/she may issue or recommend a citation; and - will not indicate any specific proposed penalties but will inform the employer of appeal rights.

45 OSHA Regulations and the Law © 2015 Fox Rothschild What are the results of an inspection? After the compliance officer reports findings, the Area Director determines whether he or she will issue citations and/or propose penalties.

46 OSHA Regulations and the Law © 2015 Fox Rothschild Citations  Inform the employer and employees of - the regulations and standards alleged to have been violated; and - the proposed length of time set to correct alleged hazards.  The employer - will receive citations and notices of penalties by certified mail;

47 OSHA Regulations and the Law © 2015 Fox Rothschild Citations (cont’d.) - must post a copy of each citation at or near the place a violation occurred for 3 days or until the violation is abated, whichever is longer; and - must comply with these posting requirements even if it contests the citation.

48 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties These are types of violations that may be cited and the penalties that may be proposed.  De Minimis Violations - have no direct or immediate relationship to safety or health and may not result in citations and/or penalties; and - usually zero or minor monetary penalty.

49 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  Other-Than-Serious Violations - has a direct relationship to job safety and health, but probably would not cause death or serious physical harm; and - penalty – OSHA may assess a penalty of $0 to $1,000 for each violation.

50 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  Serious Violations - substantial probability that death or serious physical harm could result; and - penalty – up to $7,000 depending on gravity of the violation.

51 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  Willful Violations - The employer  intentionally or knowingly commits; and  is aware that a hazardous condition exists and knows that the condition violates a standard or other obligation of the Act, and makes no reasonable effort to eliminate it. - penalty – $5,000 to $70,000 for each willful violation.

52 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  Repeat Violations - violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found and the original citation has become a final order; and - penalty – up to $70,000 for each such violation within the previous 5 years.

53 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  falsifying records, reports, or applications - criminal fine of $10,000 and/or up to 6 months in jail.  violating posting requirements - civil penalty of $7,000.

54 OSHA Regulations and the Law © 2015 Fox Rothschild Penalties (cont’d.)  assaulting, resisting, opposing, intimidating, or interfering with a compliance officer in the performance of his or her duties is a criminal offense - fine of up to $5,000 and imprisonment for up to 3 years.

55 OSHA Regulations and the Law © 2015 Fox Rothschild How does the appeal process work?

56 OSHA Regulations and the Law © 2015 Fox Rothschild Appeals by Employers  Must submit a written objection (“Notice of Contest”) to OSHA within 15 working days of receiving a citation.  The OSHA Area Director forwards the objection to the Occupational Safety and Health Review Commission (“OSHRC”), which operates independently of OSHA.

57 OSHA Regulations and the Law © 2015 Fox Rothschild Appeals by Employers (cont’d.)  An employer may request an informal meeting with OSHA’s Area Director to discuss the case.  The Area Director is authorized to enter into settlement agreements that revise citations and penalties to avoid prolonged legal disputes and result in speedier hazard abatement.

58 OSHA Regulations and the Law © 2015 Fox Rothschild Appeals by Employers (cont’d.)  An informal conference will neither extend the 15 working day contest period nor take the place of the filing of a written notice if you desire to contest.

59 OSHA Regulations and the Law © 2015 Fox Rothschild Notice of Contest 15 working days in writing  To contest either the citation, the abatement period, or the penalty, the employer has 15 working days from the time the citation and penalty are received to notify the OSHA Area Director in writing.

60 OSHA Regulations and the Law © 2015 Fox Rothschild Notice of Contest (cont’d.)  Failure to do so results in the citation and penalty becoming a final order of the OSHRC without further appeal.  An orally expressed disagreement will not be accepted.

61 OSHA Regulations and the Law © 2015 Fox Rothschild The Contest Process  After file Notice of Contest, the Area Director forwards the notice to Occupational Safety and Health Review Commission (“OSHRC”) for docketing and assignment to an ALJ.  The case is officially in litigation.  Case assigned to OSHA staff attorney.

62 OSHA Regulations and the Law © 2015 Fox Rothschild The Contest Process  Notify employees and any union representing affected employees of case docketing by posting actual Notice of Contest in workplace.  Notice informs employees and unions of their right to participate in proceeding.

63 OSHA Regulations and the Law © 2015 Fox Rothschild Surviving the OSHA Investigation  Prepare for an inspection - Create a plan for handling an OSHA inspection including.  naming contact people in advance;  drafting internal policies for dealing with OSHA during an inspection;

64 OSHA Regulations and the Law © 2015 Fox Rothschild Surviving the OSHA Investigation (cont’d.)  having critical phone numbers and contacts readily available; and  conducting internal self-evaluations.  Learn the law and understand OSHA’s procedures. - To learn more about OSHA’s practices and procedures, visit their website at www.osha.gov.

65 OSHA Regulations and the Law © 2015 Fox Rothschild Contact Information Wayne E. Pinkstone, Esq. 609-895-7063 wpinkstone@foxrothschild.com


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