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What is new with the Occupational Safety & Health Administration and what you can do to be ready. JACKSON KELLY PLLC th Street, Suite 2150 Denver, Colorado Phone: (303) Fax: (303) Laura E. Beverage Karen L. Johnston Christopher G. Peterson Dana M. Svendsen Kristin R.B. White © Jackson Kelly PLLC 2010
What is new with the Occupational Safety & Health Administration © Jackson Kelly PLLC 2010
New Personnel Last Year On February 24, 2009, Hilda Solis was confirmed as the Secretary for the Department of Labor. On April 13, 2009, Jordan Barab was appointed Deputy Assistant Secretary of Labor for OSHA. On December 9, 2009, Dr. David Michaels was confirmed as the Assistant Secretary of Labor for OSHA. © Jackson Kelly PLLC 2010
OSHA is Back in the Enforcement Business Expect more enforcement and increased penalties © Jackson Kelly PLLC 2010
OSHA is Back in the Enforcement Business What This Means: OSHA plans to hire 150 new inspectors in fiscal year OSHA’s budget will increase by 10% in fiscal year Enforcement will receive an additional $25.5 million. Compliance assistance will receive an additional $1 million. © Jackson Kelly PLLC 2010
Increased Violations and Inspections In 2008, 87,687 violations of OSHA standards and regulations were cited. Since 2004, serious violations have increased 8.7%, willful violations have increased 11.9%, and repeat violations have increased 19.4%. © Jackson Kelly PLLC 2010
New Standards Will Be Promulgated Diacetyl flavoring (popcorn lung) Combustible dust Confined space in construction The hazard communication will be rewritten to be consistent with the Global Harmonization System. © Jackson Kelly PLLC 2010
What is New in Recordkeeping A new focus: OSHA will review medical records and safety program policies that might affect injury and illness reporting. OSHA will be scrutinizing incentive programs used by employers to help reduce injuries. The focus will be on engineering-out hazards as opposed to changing worker behaviors. © Jackson Kelly PLLC 2010
Recordkeeping Legislation has been introduced that would toughen safety recordkeeping requirements for large employers with more than one work site. The legislation would require employers with more than one establishment and 500 or more workers to report the numbers and rates of work-related deaths, injuries, and illnesses at all of their work sites. Currently, employers only report injuries if three or more workers are hospitalized or if a worker dies. © Jackson Kelly PLLC 2010
Recent Trends in OSHA Enforcement Areas of emphasis due to high injury/illness rates: –Landscaping –Oil and gas field services –Residential building construction –Commercial and institution building construction –Highway, street and bridge construction © Jackson Kelly PLLC 2010
Recent Trends in OSHA Enforcement Areas of emphasis for fatality hazards include: –Falls from elevation –Trenching –Struck by –Powered industrial vehicle –Electrical © Jackson Kelly PLLC 2010
OSHA’s Current NEPs Include: Oil Refineries Combustible Dust Amputations Lead Silica Trenching, and Shipbreaking Operations. © Jackson Kelly PLLC 2010
New NEPs to Expect From OSHA Diacetyl and Flavorings Industry Workplaces that release highly hazardous chemicals – focusing on explosives, waste water treatment facilities, and ammonia refrigeration. © Jackson Kelly PLLC 2010
Potential New Legislation Currently Pending OSHA Reform Bills currently pending in both the House and Senate © Jackson Kelly PLLC 2010
Key Provisions Increase the maximum penalty for willful citations from $70,000 to $120,000 and increase with minimum penalty from $5,000 to $8,000; Increase the maximum penalty for serious and other than serious citations from $7,000 to $12,000; Establish a minimum penalty of $20,000 if a violation causes the death of an employee. © Jackson Kelly PLLC 2010
The Provisions Permit felony prosecutions against employers who commit willful violations that result in death or serious bodily injury. Require OSHA to investigate all cases of death and injuries that put two or more employees in the hospital. Provide workers and employee representatives with the right to contest OSHA decisions on whether to issue citations and the classification of penalties proposed for them. © Jackson Kelly PLLC 2010
The Provisions Preclude OSHA from designating a citation as unclassified. Provide workers the opportunity to object to a modification or withdrawal of a citation in settlement, and then being entitled to a hearing before the Commission on the objection. During settlement negotiations, provide an opportunity to the injured individual or his representative to appear and make a statement before the parties enter into an agreement. © Jackson Kelly PLLC 2010
Each Bill is still in Committee We expect penalties to be increased at a minimum. © Jackson Kelly PLLC 2010
What can you do to be ready? © Jackson Kelly PLLC 2010
Know your rights and the company’s limitations. Be an active participant and understand the process. Do not be intimidated. Be firm, but polite. Model Behaviors for the Inspection Process © Jackson Kelly PLLC 2010
Know when to object to certain conduct - don’t wait until it is too late. Know when you need help, and ask for it immediately. Don’t be overly antagonistic or a pushover. Have a system in place for dealing with the processes in advance. Model Behaviors for the Inspection Process © Jackson Kelly PLLC 2010
Authorized Representatives of Employees Under the OSH Act OSHA regulations permit an employee representative(s) to accompany the inspection. Generally, one (1) employer representative and one (1) employee representative, but additional representatives are allowed at the discretion of the Safety & Health Officer, if it would further aid the inspection. © Jackson Kelly PLLC 2010
OSHA Inspections Establish and maintain a cooperative relationship with the compliance officer. Ask the compliance officer the purpose of inspection or visit. Clearly establish the parameters of the inspection - agree on areas/equipment to be inspected, routes to take, extent of inspection (i.e., whether samples will be taken, protocols, side-by-side or split, trade secret issues). Identify inspection team. Ascertain when and how interviews will be conducted. Put it in writing. Resolve disputes with the Compliance Officer Supervisor. Opening Conference © Jackson Kelly PLLC 2010
OSHA Inspections OSHA must have a private employer’s consent or a valid warrant to enter the premises (except in imminent danger or “plain view” situations). An employer can challenge a warrant, typically by filing a motion to quash the warrant. OSHA’s authority to enter premises, and conduct inspections/investigations © Jackson Kelly PLLC 2010
OSHA Inspections Administrative warrants are liberally granted. Therefore, insisting that an OSHA inspector obtain a warrant may result in only slight delay and moving to quash is often unsuccessful. However, limits may be imposed on the scope of the inspection as a result of a challenge. OSHA can also issue investigative subpoenas for both testimony and documents. OSHA’s authority to enter premises, and conduct inspections/investigations © Jackson Kelly PLLC 2010
Exceptions Plain View Doctrine Open Fields Doctrine © Jackson Kelly PLLC 2010
OSHA Inspections Ask the compliance officer to provide a written list of requested records. Provide the list to designated official within company for review. Have records that are required by the OSH Act ready & available for inspection. Inform compliance officer that any requests for records not required by the OSH Act will be reviewed in accordance with company policy. Records © Jackson Kelly PLLC 2010
OSHA Inspections Accompany the compliance officer at all times. Take photographs/video records/samples, etc. of the same items the compliance officer does. Take notes of all conditions noted by the compliance officer. Discuss immediately with the compliance officer the reasons for and/or hazards caused by any alleged violation the inspector notes. Arrange abatement and/or protective measures as soon as possible. Participation © Jackson Kelly PLLC 2010
OSHA Inspections Discuss abatement time extensions, if needed. Do not make admissions against interest. Give compliance officer only facts, not guesses. Take notes of all available evidence regarding any alleged violation (e.g., witness names and statements; inspector’s comments; description of condition/hazard including measurements, diagrams, equipment, time and location). Participation © Jackson Kelly PLLC 2010
OSHA Inspections Request duplicates of OSHA samples and photographs. Ask questions regarding alleged violations and suggested abatement methods. Ask what citations will be issued. Correct any factual misunderstandings. Do not make admissions against interest. Take notes. Closing Conference © Jackson Kelly PLLC 2010
Key Points OSHA must have a warrant to enter into an employer’s premises unless the employer waives that requirement. Be prepared for the inspection by having an effective safety and health program in place. Be cooperative with your compliance officer, but understand your rights and the limits of the officer’s authority. © Jackson Kelly PLLC 2010
Key Points Actively participate in the inspection and accompany the compliance officer at all times. Duplicate all the samples, photographs, and data collected by the inspector. Document any alleged violations before they are corrected and after abatement occurs. © Jackson Kelly PLLC 2010
Key Points Do not make admissions against interest during inspection and do not speculate. Effectively participate in the opening and closing conferences. Be prepared to challenge the issuance of the enforcement action, if necessary. © Jackson Kelly PLLC 2010
The Informal Pre-Contest Conference The employer has the opportunity for an “Informal Conference” with the OSHA Area Director’s Office to discuss citations prior to the 15- working day period for contesting citations. The conference provides the employer with an opportunity to present evidence to demonstrate that the citation is without merit and should be vacated or to argue for reduction in characterizations and/or penalty amounts. © Jackson Kelly PLLC 2010
The Informal Pre-Contest Conference Checklist for successful participation in an informal conference - Gather facts to support the lack of a violation or any mitigating factors. -Consider helpful evidence that is available. -Research legal support for your position. -Are there any affirmative defenses available? -Does the evidence support OSHA’s characterizations of the alleged violations, i.e., serious, willful, repeated, etc.? © Jackson Kelly PLLC 2010
The Informal Pre-Contest Conference Absolute guidelines to follow: -Be truthful. -Be cooperative. -Remain focused on the issues at hand. -Correct any factual misunderstandings. -Present the evidence developed to support your case. -Be prepared to answer tough questions. -Take notes on any comments made or modifications agreed to. -Ask for explanations when you are unclear. © Jackson Kelly PLLC 2010
Authority In Inspections/ Investigations WARRANTS Must obtain a warrant to conduct searches of sites and records. INTERVIEWS Does have the right, once on property, to conduct private interviews. [§ 8(a)(2)] SUBPOENAS Authority to issue subpoenas to compel testimony and/or documents. [§ 8(b)] © Jackson Kelly PLLC 2010
Authority In Inspections/ Investigations WITHDRAWAL ORDERS Court ordered Injunctive authority to abate imminent danger after a hearing. [§ 13] ABATEMENT Valid contest stays abatement until adjudication hearing. [§ 10(b)] © Jackson Kelly PLLC 2010
Key Points OSHA has broad jurisdiction over workplace safety and health and may conduct inspections from time to time. OSHA generally does not have warrantless inspection rights of entry. OSHA may require employers to produce for review records required by the OSH Act and regulations to be maintained. © Jackson Kelly PLLC 2010
OSHA Inspections Programmed inspections have the following characteristics: -Are the lower priority of inspection activity. -Are aimed at specific high-hazard industries and occupations and at hazardous exposures to toxic substances. Factors forming the basis for selection of an industry for inspection include injury and illness incidence rates, and employee exposure to toxic substances. May be wall-to-wall, but begin with a review of injury/illness rates and lost workdays. There are two types of OSHA Inspections: Programmed and Unprogrammed © Jackson Kelly PLLC 2010
OSHA Inspections Unprogrammed Inspections: -Are the higher priority of inspection activity and cover three categories: Imminent danger investigations Accident, fatality and catastrophe investigations Employee complaints Are not normally wall-to-wall inspections, but may be, depending on circumstances. © Jackson Kelly PLLC 2010
Unprogrammed OSHA Inspections Notice of an alleged hazard or a violation of the Act given by any source, including media, not encompassed under the complaint inspection. Referral © Jackson Kelly PLLC 2010
Unprogrammed OSHA Inspections A signed complaint alleging an imminent danger or the existence of a violation threatening physical harm, submitted by a current employee, a representative of employees, or present employee of another company if that employee is exposed to the hazards of the complained-about workplace. Formal Complaint © Jackson Kelly PLLC 2010
For more information on these and other occupational safety and health topics, please visit: Laura E. Beverage Karen L. Johnston Christopher G. Peterson Dana M. Svendsen Kristin R.B. White © Jackson Kelly PLLC 2010
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