1. 1 ELEMENTS OF A 5(a)(2) OSHA STANDARD VIOLATION (Prima Facie) n The standard applies to the cited working conditions. n The terms of the standard were not complied with. n Employees had access to the violative condition, and n Knowledge of the violation. (The employer knew of the violative condition or could have through the exercise of reasonable diligence.) u Are you inspecting the worksite often enough?

2. 2 Employer can challenge: n The standard applies to the cited working conditions. n The terms of the standard were complied with. n Employees had access to the violative condition, and n The employer knew of the violative condition or could have, through the exercise of reasonable diligence. n Affirmative defenses n Constitutionality

3. 3 AFFIRMATIVE DEFENSES n Commonly used by employers in contested cases

4. 4 Affirmative Defenses n Unpreventable employee misconduct or isolated incidence. n Impossibility \ Infeasible n Greater Hazard n Multi-employer

5. 5 EMPLOYEE MISCONDUCT GENERAL PRINCIPLE n If an employee is negligent or creates a violation, that does not necessarily prevent the employer from being held responsible for the violation.

6. 6 UNPREVENTABILITY n General principle. F “[An employer] cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning their working practices.” F IT IS NOT UNPREVENTABLE IF YOU ARE NOT EFFECTIVELY MANAGING. What has been done to prevent it??? What has been done to prevent it???

7. 7 Employer Can Establish An Employee Misconduct/ Unpeventability Defense By Showing: n Existence of an effective safety program designed to prevent the violation. n Adequate safety instructions effectively communicated to employees. (Training) n Means to discovering violations of instructions. (Follow-up inspections) n Enforcement of safety rules. (Discipline) SET EXPECTATIONS HOLD PEOPLE ACCOUNTABLE

8. 8 Safety And Health Program Elements: A “Regulatory Compliance” Perspective n COURTS u Effort to identify hazards u Establish work rules u Effective communication of work rule (training) u Inspection (follow-up) u Effective enforcement n MANAGEMENT GUIDELINES u Employer commitment u Employee involvement u Workplace analyses u Hazard prevention and control u Safety and health training

9. 9 GREATER HAZARD n GENERAL PRINCIPLE: u Even if the employer demonstrates that his method is less hazardous than compliance, he may not be able to disprove that there were feasible alternative protective methods. u The Review Commission has been rejecting this affirmative defense if: F The compliance officer has been able to demonstrate a feasible method of abatement, or F Employer has not applied for a Variance

10. 10 IMPOSSIBILITY DEFENSE n ELEMENTS u Compliance is functionally impossible or would prevent performances of required work; and u There are no alternative means of employee protection. n The first element above may take either of two forms: u The regulation can be complied with, but the employer can demonstrate that such compliance would preclude performance of work; or u The employer proves that it is physically impossible for the employer to comply with the cited regulation.

11. 11 IMPOSSIBILITY DEFENSE n ELEMENT - 2 u Alternative means of employee protection are unavailable, u To establish this element of the defense the employer must demonstrate that: F He used adequate alternative measures or that alternative measures were completely unavailable.

12. 12 MULTIEMPLOYER WORKSITE POLICY Field Operations Manual

13. 13 Multi-employer Worksites n Both construction and non-construction n Citations normally issued to exposing employer n Employers may be cited whether or not their own employees are exposed

14. 14 Multi-employer Worksites Citable Employers n Employer who actually creates the hazard (creating employer) n Employer who has employees exposed to the hazard (exposing employer) n Employer responsible by contract F Employer who has authority for ensuring hazardous condition is corrected (controlling employer) n Employer who has responsibility for correcting the hazard (correcting employer )

15. 15 MULTIEMPLOYER n Affirmative defense an exposing employer can use to challenge and OSHA citation

16. 16 Legitimate Defense for Exposing Employer n Did not create the hazard n Did not have the responsibility or authority to have hazard corrected n Did not have ability to correct or remove the hazard n Specifically notifies controlling/correcting employer of the hazard n Instructed employees to recognize and avoid hazards n Took appropriate steps to protect employees u In extreme circumstances, removes employees

17. KCAO Enforcement Summary Fiscal Year 2011 n Total Inspections = 676 n % in-compliance inspections = 17.9% n % Construction Inspections = 58.6% n % Serious Violations = 90% n Average $ per violation = $3519 n # accident Investigations = 12 n # Complaints handled = 329 n # Significant Cases = 3

18. FY 2011 Top 10 Most Cited Standards (Construction Industry) Scaffolding Scaffolding Fall Protection Fall Protection Ladders Ladders Fall Protection, Training Requirements Fall Protection, Training Requirements Hazard Communication Hazard Communication General Safety & Health Provisions Head Protection Aerial Lifts Eye & Face Protection Specific Excavation Requirements

19. Without a good safety program, you could end up with your a$$ in a sling!

20. Understand Accident Causes n Accidents are caused by: u Unsafe conditions u Unsafe acts

21. 21 Safety And Health Program Elements: A “Beyond Regulatory Compliance” Perspective

22. 22 SAFETY PAYS!!! n THANKS!!! n Mark Banden F (816) 217-3274, CELL F Banden.Mark@dol.gov