1 OSHA BEST PRACTICES Emergency Response Through OSHA Inspection May 11, 2012 ACRP GENERAL ASSEMBLY

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OSHA BEST PRACTICES

Emergency Response ThroughOSHA Inspection

May 11, 2012

ACRP GENERAL ASSEMBLY

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David Johnson, Partner, SmithAmundsen, LLC

Stephen Yates, President, Optimum Results

Presenters

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CATASTROPHIC LOSS

PLANNING AND RESPONSE

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Responding to Catastrophic Loss After it Occurs is Too Late

Prepare in advance of a catastrophic eventTime immediately after the accident is critical Implementation of an immediate response

program minimizes risko This must be in place BEFORE the catastrophic

event occurs

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Benefits of Effective Immediate Response

Secure an early evaluation of the losso Both strengths and weaknesses

Identification and preservation of evidenceo Everyone in response team must work together

o Have clearly identified roles

o In-house counsel, in-house claims management, technical experts, investigators, outside counsel

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Pre-Incident Risk Analysis

Effective immediate response begins with analysis of specific risks:o Think about “worst case scenarios”o Identify risks and hazardso Plan for how and with whom you will address riskso Duty to identify and minimize risk is ongoingo Predicting beforehand minimizes risk, and generally

reduces costso No plan is perfect

but planning makes response more effective.

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Job-Hazard Analysis:o A step-by-step method if risk identification related

to a particular task List all steps required to complete task Review each step to determine what healthy and

safety hazards are present Determine measures to eliminate or lessen effects of

those hazards

An outside inspection or audit of the health and safety program

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Look for various control measureso Engineering Controls

Machine guarding, guardrails, ventilation, and raw material substitution.

o Administrative Controls Job rotation and training

o Personal Protective Equipment (PPE) Last line of defense

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Pre-Catastrophic Loss Preparation- The Playbook

Identify the response team Team will include:

o In-house: counsel, safety specialists, HR, ITo Outside counselo Independent adjustors/investigatorso Experts and specialists ando Insurer contact

Have contact information readily available Policy considerations include:

o Media policy, response team members, record retention policy

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Outside Counsel

After notice of a catastrophic occurrence, response team leader should contact rest of team

Outside counsel should be FIRST contacted Involvement of an attorney allows for free

flow of information under the cloak of privilege with team leader.

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Investigator/Adjustor

After counsel has been contacted, an investigator should be dispatched to the scene and coordinate with counsel

The investigator should have a high level of understanding of OSHA

If it is determined that an expert is needed, one should also be present to conduct technical and scientific analysis

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Company Personnel on Scene

Supervisory personnel should be presento Usually a foreman, superintendent or project

manager

Company personnel should NOT speak with anyone other than the company representatives, counsel and the investigatoro If approached by law enforcement or OSHA

investigators, company personnel may need to speak, but should first consult counsel

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Accident Investigation

Should be performed by someone:

o Experienced in accident causation and investigative techniques

o Work processes, procedures, and persons of a particular situation

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Report the accident to a designated person Provide first aid/medical care and prevent further

injuries Investigate accident Identify causes Report findings Develop a plan for corrective action Implement the plan Evaluate the effectiveness of the plan Make changes for continuous improvement

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Look for the Root CauseExample: Investigation concludes accident

due to worker carelessness and goes no further fails to seek answers to several important questions such as:o Was worker distracted? If yes, why?o Was safe work procedure being followed? If not,

why not?o Were safety devices in order? If not, why not?o Was the worker trained? If not, why not?

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Accident Investigation Task

o Safe procedures used? Change in conditions to make normal procedure unsafe? Appropriate tools and materials available? Were the used? Were safety devises working properly? If not, why not?

Equipment and Materialo Equipment failure? What caused it to fail? Machinery poorly designed?

Hazardous substances involved? PPE used? Users properly trained? Environment

o Weather conditions? Housekeeping a problem? Temperature, noise, lighting? Toxic substances present?

Personnelo Workers experienced? Adequately trained? Physically capable? Tired?

Stressed? Health? Management

o Safety rules communicated and understood? Written procedures and orientation available? Procedures enforced? Adequate supervision? Workers trained? Job hazards previously identified? Procedures developed to overcome hazards? Unsafe conditions corrected? Regular equipment maintenance. Inspections performed?

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Physical Evidence All equipment involved must be secured Chain of custody and investigation protocol should

be established Secure evidence on scene

o Witnesses, instrumentalities, documentation Steps to consider:

o Witness statements, photographs, testing and sampling, drug and alcohol testing of persons involved.

This is where a pre-determined documentation retention policy comes into play.

Limit risk and exposure.

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Rapid Response Activity

Identify:o Persons inured or killed (and notify contacts)

o Location of the accident-position of injured

o Date/time of the accident

o Eyewitnesses

o Supervisory Personnel

o All contractors on the site

o Supervisors of the injured party

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Rapid Response Activity Locate:

o Warnings and safety devices on the siteo Flagging, tie-offs, and barrierso Guarding and safety mechanismso Operators’ manualso Annual crane inspectiono Daily crane inspectiono Drug screen resultso Lease Agreemento Load Chart used for this set upo Maintenance recordso Photos and measurements of the accidento Signed Job Ticketo Contracts of all involved partieso Insurance policies and certificates--Later

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Determine:o The activities ongoing at time of accidento What the injured party was doing at the time of the accidento Environmental and weather conditions o Root cause of accidento Nature and scope of the injuryo The owner or furnisher of tools or equipment

One should preserve evidence or document conditions before conditions are altered by ongoing construction

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Obtain:o Accident reportso Police/Fire department reports, including photos, measurements,

and accident reconstruction analyseso Jobsite progress photographs and any accident site photographs o Any site, security, or newscast video footageo Handwritten or recorded statements of witnesseso OSHA investigation documents and reports—takes timeo Coroner’s records, including autopsies, toxicology reports, photoso Tool box meeting handoutso Safety manualso Safety meeting recordso Site safety plans

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Post-Response Efforts

Assembling all information secured and evaluate the strengths and weaknesses of potential claims

Documenting strengths and weaknesses while the information is fresh

If facts are favorable, you may respond to claims if and when the claim is brought

If unfavorable, you can begin to increase reserves and prepare an intelligent response to claims

If the claim is not resolved, then you have all the information you will need at your disposal to defend the claim.

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Contacting OSHA

Reporting requirements:o If a fatality occurs, the accident must be verbally

reported to local OSHA office or by using the OSHA toll-free number within 8 hours of the employee’s death.

o Must also report any incident resulting in the hospitalization of three or more employees

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THE OSHA INSPECTION

FROM OPENING CONFERENCE THROUGH

NOTICE OF CONTEST

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Before OSHA arrives

What is at stake for the employer?o OSHA civil liability and penalties

o OSHA criminal liability and penalties

o Abatement costs

o Negative media attention

o Disrupted employee relations

o Increased insurance rates

o Lost business opportunities, particularly job bidding and contracts

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Crackdown on Enforcement

Under the Obama administration, OSHA has stepped up enforcement efforts and increased penalties

Clear that current OSHA leadership is strong proponent of worker protections, and is using penalties to generate revenue

Construction industry is a targetCrane industry-1926-1400-is big target

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April 22, 2010, OSHA issued a revised penalty policy:o OSHA’s thought is that Increased penalties

results in greater deterrence

o Publicize citations and do not settle easily Threshold for publication of a violation formerly

$100,000. . . Now, it is $45,000 Negative press can be more harmful than citation

itself

o More “serious” and “willful” violations

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Higher penalties: o Size of penalty:

Reduced 10-40% for employers with less than 250 employees No reduction if over 250 employees

o Good faith requirement: A 15% quick fix incentive for immediate abatement of hazardous

condition

o Repeat offenders: Increased time frame for repeat violations from 3 years to 5 years

o Minimum penalties: Serious violation penalty now $500

o Increased penalties for “egregious” violations

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Record keeping:o OSHA looking to stop incentive programs for

employees who do not report illness or injury Example: reward systems where employee receives

monetary bonus for each month/year with no reported injury or illness.

o Unrecorded injury may be characterized as a “willful” violation

o OSHA may also view non-payment of bonus as retaliatory conduct by employer

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Severe Violator Enforcement Program-2010:o Concentrates OSHA’s enforcement efforts on employers with

a “demonstrated indifference” to safetyo “Demonstrated indifference” means history of:

Willful violations Repeat violations Failure to abate violations Plus a fatality or catastrophe

o A higher emphasis industrial operations or processes (e.g., fall protection, dust, silica, trenching)

o Prior egregious enforcement of employer

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Consequences of SVEP: Severe violator gets heightened scrutiny including:o Follow up inspections at other worksites operated by the

employer countrywide

o Settlement requires increased safety obligations (e.g., hire additional safety personnel, injury/illness reporting obligations, self auditing requirements)

o Elimination of certain citation penalty reductions

o Requirement to report any serious violation and consent to inspection

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OSHA Violations

To establish a violation of an occupational safety or health standard, OSHA must prove:o (a) the applicability of the cited standard;

o (b) the employer’s non-compliance with the standard’s terms;

o (c) employee access to the violative condition; and

o (d) the employer’s actual or constructive knowledge of the violative condition

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OSHA Violations

Potential Citations:o Other than serious

o Serious

o Willful

o Repeat

o Failure to abate a hazard by OSHA’s deadline

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Types of Violations

A serious violation requires only that the employer “knew or should have known” of the violation

A willful violation is committed either with actual knowledge of the violation or with plain indifference to the violation

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Types of Violations

A willful violation does not result simply because a hazardous condition “should have been obvious”

A willful violation requires evidence of the employer’s knowledge or indifference at the time of the alleged violation

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Types of Violations

Willful violations carry higher civil penalties-up to $70,000 per citation compared with $7,000 for a serious violation

Willful violations can result in criminal prosecution of the employer and its individual managers if the willful violation caused an employee’s death

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Types of Violations

A repeat violation results from OSHA citing an employer for a previous substantially similar violation

Repeat violations can be based on prior General Duty Clause violations or specific violations

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Types of Violations

OSHA maintains a national online database on which an OSHA compliance officer can, and will, search for any violations previously issued to an employer anywhere in the country

A violation will be considered a repeat violation if the violation occurred within 5 years of the final order date of the previous violation

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Types of Violations

Repeat violations carry penalties of up to $70,000

To an uninformed employer, what may seem like a harmless “serious” or “other than serious” violation, with a nominal or no monetary penalty, may lay the foundation for a subsequent repeat violation—SO BEWARE

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Criminal Liability

There is potential criminal liability if:

o A violation of a specific regulation

o The violation was willful, and

o The violation caused an employee’s death

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Criminal Liability

Penalty:

o 6 months imprisonment, and/or

o $500,000 fine per fatality for corporation

o $250,000 fine per fatality for individual

NO MIRANDA WARNINGS DURING AN OSHA INSPECTION!

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Criminal Liability

Other criminal liability can result from:

o Obstruction of justice for interfering with OSHA inspection

o Falsification of records

o Lying to a compliance officer

TELL THE TRUTH

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The Opening Conference

When OSHA arrives:o Be courteous

o Show compliance officer to a conference room or empty office

o Notify designated point person

o Point person takes control of the inspection and is responsible for all communications with compliance officer and sticks to him throughout inspection

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Company representative and union representative (if applicable) should attend the opening conference

Compliance officer will give reason for inspectiono Accident, complaint, referral, general inspection,

programmed

This is where management strategy becomes crucial

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If reason for OSHA inspection is an accident-show concern for worker safety and promote it

First impression on OSHA is importantAll employees should have knowledge of the

safety programAll employees should know what a competent

person is If reason for OSHA inspection is an employee

complaint, ask to see complaint

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The OSHA Inspection

The inspection may be inevitable, but a citation might not be

Must manage the inspection process as effectively as possible

OSHA is there to get the facts, not help you Be informed of your rights and prepare your

employeesBe cordial but cautious, and always

remember OSHA’s objective

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The OSHA Inspection

Consent:o Employer has a right to request a warrant before inspection

Not always advisable to do so May increase the compliance officer’s suspicions May increase future inspections May put you on OSHA’s “radar”

o Plain View Doctrine: When worksite is visible from a public area, an OSHA compliance

officer has the right to photograph and observe from that locationo Consent may be given by any management official including a

foreman or superintendent Make sure employees are aware of this

o On a multi-employer worksite, consent comes from site “controller” Usually owner, developer, or general contractor

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The OSHA Inspection

In deciding whether to allow the inspection based on an accident, management should consider the following matters:o Did the accident in fact occur involving the

employero Is the accident scene still in existence or have the

conditions changedo If fatality-site frozen until OSHA commences its

inspection unless doing so creates a hazard to employees

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The OSHA Inspection

In deciding whether to allow the inspection based on an employee complaint, management should consider the following matters:o Is the complaint valid?

o Does it identify the correct workplace, employer or equipment

o Does it identify a hazard which in fact exists at the worksite

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The “Walk Around”

NEVER allow an OSHA compliance officer to walk the worksite unattended

Company and Union representatives have right to accompany the compliance officer

Take parallel videos, photos, samples, notes

and measurementso Do not rely on or expect OSHA to share its

findings with you

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The “Walk Around”

Control of the scope of the inspection

o Where will the inspector be permitted to go at the worksiteo What operations will the inspector be allowed to observeo If employer allows the inspector broader access than to

evaluate the accident or complaint, the employer is subject to citations for anything that the inspector observes because the employer voluntarily consented to a broader inspection

o Whatever the inspector observes during the walk around that is in plain view is subject to citation

o Communicate scope to inspector to reach an informal agreement regarding the scope of the inspection before the inspection begins

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Multi-Employer Worksites

Liability was expanded under Multi-Employer Workplace Doctrine

Each employer is potentially responsible for the safety and health of another employer’s employee if the employer:

-Creates the hazard -Exposes an employee to the hazard -Is responsible for correcting the hazard, or -Is the controlling employer on the worksite

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OSHA Document Requests

Insist that requests for documents be made to a single source and in writing

Considerations include:o Are the documents produced responsive to OSHA’s

requests?o Don’t give OSHA something they haven’t asked foro Is it privileged?

Always keep a copy of what’s sent to OSHA Never allow the compliance officer unfettered

access to documents

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Employee Interviews

Any “supervisory” employee may be interviewed by OSHA

o Any foreman, crew leader, lead man, or other employee considered “in charge”

o Applies even if person is in a union Employer’s Counsel may be present during management

employees’ interviews Union or hourly employee may be interviewed privately (or with

steward) if they consent What is said can be used as evidence TELL THE TRUTH!—Lying to OSHA is a CRIME!

o Can be charged with felony for obstructing a federal investigation

o Can do prison time!!!!

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Employee Interviews

Employees’ Rights:

o Right to a private 1 on 1 interview with compliance officer-confidential-no retaliation-no disclosure

o Right to refuse to be interviewed by compliance officer—emotional-fearful-intimidated/manipulated to expose them to liability-if refuse—subpoena—then employee full scope of rights-legal counsel

o If consent-right to have person of their choice to attend-if compliance officer refuses to allow-decline interview—without reason

o Right to end interview and leave at any time-without reasono Right to refuse to be recorded, photographed, or sign statement

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Employee Interviews

Hourly employee’s right to legal counselo Right to have person of choice present-so legal

counsel would qualifyo Right to be represented in judicial and

administrative proceedingso Employer has obligation to defend employees

when faced with liability for acts which occurred within the course of their employment

o Potential criminal liability for fatality or multiple injuries—right against self incrimination

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Employee Interviews

OSHA’s objections to employer’s legal counsel representing an hourly employee during OSHA interview:o Employer’s attorney-conflict of interest-not

OSHA’s right to object to conflict of interest-right of employee to accept as long as disclosure and knowing waiver of conflict

o Employee exposure to retaliation for what is said in presence of employer’s attorney—but employee protected from retaliation by Act

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Employee Interviews

OSHA’s rights:

o Right to interview the employee in private if employee consents

o Right to have truthful responses to questions

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Employee Interviews

Employer’s rights:

o Right to participate in non-private employee interviews and, if the compliance officer refuses, require that the interviews occur on non-paid work time

o Right to end interviews if disruptive, unreasonably interfere with ongoing work or become confrontational

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Closing Conference

Negotiation starts here OSHA knows what’s going on-interviews, walk around,

documents Can be in person or over the telephone Obtain as much information from compliance officer as

possible:o What citations will be recommendedo How will each be classified o What should company do going forwardo What abatement should be done, and howo Basis for each citation

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Closing Conference

Clarify any misunderstandings of factDO NOT:

o make admissions; o argue; o get angry; o insult the compliance officer or OSHA; or o discuss the financial situation of your

company, the economy, or the government

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Issuance of Citations

Citations arrive by way of certified mail and are tracked by OSHA

Citations must be received within 6 months of inspection or they are stale and can be easily defeated

Citations will reference standard(s) violated, set out proposed penalties, and outline your rights

Act on Citations IMMEDIATELY

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Review Citation(s):

o Factual Errors -Is the Citation’s Alleged Violation Description (AVD) correct? -Did the alleged violation actually occur

o Legal Errors-Does the specific regulation apply to the hazard?-Does another regulation apply?-Is there an exemption within the regulation?-Is the General Duty Clause inapplicable (i.e., does a specific regulation apply to the hazard)

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Interview company witnesses involved in the alleged violation to confirm the facts

Review employer documentation of:-Applicable safety or health program for the

hazard

-Employee training

-Employer discipline for prior violations of the safety and health program

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Have 15 working days (exclusive of federal holidays) from receipt of citation to file a written Notice of Contest

Failure to file Notice of Contest within 15 working days of receipt of a citation precludes any challenge to any part of the citation

CONTEST PERIOD CANNOT BE EXTENDED

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Informal Conference

OSHA encourages the informal conference and it should be pursued

A potential means for resolution without litigation or appeal

Allows employer to gain understanding of exactly what OSHA expects

Occasionally, settlement terms may be favorable to employer if citation remains as issued o Be creative with settlement terms: e.g., provide additional

training

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Informal Conference

Schedule Informal Conference at the same time Notice of Contest is filed

Prepare employer representatives for their roles Assemble documents for production at Informal

Conference Prepare employer’s position regarding citations

o Vacate, amend, reduce classification, reduce penalty, modify abatement date

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Informal Conference

At Informal Conferenceo Explain employer’s commitment to safety

and health

Discuss employer’s concern about accepting citations that are not factually or legally correct because of future liability for repeat or willful violations

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Informal Conference

Articulate employer factual and legal defenses Do not make admissions of violations during the Informal

Conference Request that citations be vacated, amended, etc., as appropriate Consider OSHA’s response to company’s proposal Does OSHA’s proposal expose company to future repeat or

willful violations Confirm with OSHA employer’s abatement obligations If reach settlement, carefully review Informal Settlement

Agreement to confirm that it reflects agreed upon terms

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Informal Conference

If no settlement, prepare written Notice of Contest and file within the fifteen working day period if not already done

Post Notice of Contest at worksite Employer will be contacted by OSHA Solicitor,

attorney representing the agency, within several weeks to discuss settlement

If not done already, consider retaining attorney who is experienced in OSHA law to advise employer

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Notice of ContestTo Contest…Or Not To Contest

Consider:o Nature of violation

Repeat? Willful? Severe?

o Proposed penalties

o Cost to contest

o Cost of abatement If prohibitively costly and delays completion of work, may

not want to challenge

o Whether employer believes citation is proper or not Improper standard applied, violation did not occur,

regulation inapplicable etc.

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Notice of Contest

After the complaint and answer are filed, case goes to OSHRC (Review Commission)

Majority of cases settle before going to hearing

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Questions?

Documents

1 OSHA BEST PRACTICES Emergency Response Through OSHA Inspection May 11, 2012 ACRP GENERAL ASSEMBLY