OSHA Regulations And The Law Presented by: Wayne E. Pinkstone, Esq. 2015 ACLAM Forum

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.

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

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.”

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."

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

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.

Overview Workplace Standards General industry standards: applicable to all workplaces Worksite specific standards

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.”

Relevant Standards General Industry Standards: Applicable to All Workplaces Hazard Communication Bloodborne Pathogens Emergency Action Plan Walking/Working Surfaces Medical First Aid

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.

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.

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

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.

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

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.

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.

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.

Inspections Inspections Inspections are conducted without advance notice. Under special circumstances, OSHA may give less than 24 hours notice to employers.

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.

What are OSHA’s inspection priorities? Inspections What are OSHA’s inspection priorities?

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.

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.

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

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

Complaints and Referrals Formal employee complaints of unsafe or unhealthy working conditions and to referrals from any source about a workplace hazard.

Programmed Inspections Aimed at specific high-hazard industries, workplaces, occupations, or other industries identified in OSHA’s current inspection procedures.

Follow-up Inspections Determines if the employer has corrected previously cited violations.

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.

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.

What does the inspection process involve?

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.

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;

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

Opening Conference (cont’d.) gives an authorized employee representative the opportunity to attend the opening conference and accompany the compliance officer during the inspection.

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;

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;

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.

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;

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;

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.

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.

Closing Conference At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer and/or the employees’ representative.

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.

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.

Citations Inform the employer and employees of The employer 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;

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.

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.

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.

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.

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.

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.

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.

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.

How does the appeal process work?

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.

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.

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.

Notice of Contest 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.

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.

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.

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.

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;

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.

Contact Information Wayne E. Pinkstone, Esq. 609-895-7063 wpinkstone@foxrothschild.com