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OSHA in 2013 What s Old is New Again Carla J. Gunnin Baker, Donelson, Bearman Caldwell & Berkowitz, P.C Peachtree Road, Suite 1600 Atlanta, GA Baker,
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OSHA in 2013 What s Old is New Again Carla J. Gunnin Baker, Donelson, Bearman Caldwell & Berkowitz, P.C Peachtree Road, Suite 1600 Atlanta, GA Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All rights reserved. Players at OSHA December 2009 David Michaels became the new head of OSHA. Deputy Assistant Secretary Jordan Barab. Chief of Staff Deborah Berkowitz. All reports are that these players hope to remain in their positions but, who will be the new Secretary of Labor? to be continued. 2 Georgia OSHA Offices Atlanta East Area Director Bill Fulcher Atlanta West Area Director Andrea Richards Savannah Area Director Robert Vazzi 3 What have we seen under the Michaels era? More inspections, more enforcement, bigger penalties. Fewer partnerships and cooperative programs. New Standards and Interpretations. Revival of safety and health program standard I2P2. Enforcement initiatives directed at claims of under-reporting of injuries and illnesses. Ergonomics enforcement. Regulation by shaming.... more hard hitting press releases that explain more clearly why we cited a specific employer. D. Michaels, Letter to OSHA Colleagues, 7/19/10. Heavy use of the general duty clause Section 5(a)(1) of the OSH Act. 4 Enforcement 5 2012 OSHA Inspections - Summary Seventy-five percent of all inspections resulted in citations being issued. The number of significant cases - those with fines totaling more than $100,000 - increased by 32% from a number that has increased every year since Michaels appointment More use of willful characterizations. Average cost of a serious violation is $3000. Repeat look back is five years from the date of the final order. Other than serious citations CAN result in repeat citations Increased use of SVEP Severe Violator Enforcement Program. 6 Severe Violators Program June Severe Violators Enforcement Program (SVEP) Willful or Repeat Violations related to serious hazards. Does not have to be final order only issued citations Enhanced follow-up inspections at cited facility after abatement verification to determine if there are similar violations. Nation-wide follow-up inspections at other facilities. Increased company awareness, e.g., citations sent to corporate headquarters; issuance of news releases. Enhanced settlement provisions consultants; corporate-wide. Increased use of Federal court enforcement action - contempt of court under Sec. 11(b) of the OSHA Act. 7 SVEP GET ME OFF THE LIST August 2012 OSHA finally provided criteria for removal 3 years since case became a final order All items have remained abated All penalties have been paid No additional related serious hazard have been identified at the initially inspected worksite or any related establishments 8 Duties of Employers Section 5 of the OSH Act 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 likely to cause death or serious physical harm to his employees; shall comply with occupational safety and health standards promulgated under this Act. 9 Overview of OSHA Process Process Begins with an Inspection: What Causes an Inspection to Occur? Strategic Targeting Inspection (SST) Complaints National Emphasis Programs Referral Media, Other agencies, Plain View Fatality/Multiple Hospitalization What Does an Inspection Consist Of? Opening Conference Walkaround Inspection Closing Conference 6 Month Limitation 10 Site Specific Targeting January 4, 2013 Program 2012 Program is based on the 2010 data that was collected by the 2011 Data Initiative. Primary Inspection List Manufacturing Establishments with a DART rate at or above 7.0, or a DAFWII case rate at or above 5.0. Non-manufacturing Establishments with a DART rate at or above 15.0, or a DAFWII case rate at or above Secondary List Nursing and Personal Care Facilities with a DART rate at or above Inspections will focus specifically on ergonomic stressors; exposure to blood and other potentially infectious materials; exposure to tuberculosis; and slips, trips, and falls. What About 2011 OSHA Data Survey Non-Responders? A random sample will be added to the Secondary Inspection List. 11 Most Frequently cited OSHA Standards for Oct Sept Duty to have fall protection Hazard Communication Scaffolding Respiratory Protection Lockout/Tagout Powered industrial trucks Electrical wiring Ladders Machine Guarding Electrical Systems 12 Complaint-Based Inspections Over 20% of all OSHA inspections are complaint based. OSHA allows complaints to be filed on-line. See The GAO determined that the OSHA inspection rate at establishments that experienced labor unrest was 6.5 times higher than at establishments that did not experience such unrest. See 13 Handling Complaints Review procedures for employees to raise safety and health concerns. Are your procedures confidential, credible, and responsive? Look at work order system. Are safety issues given priority? Are work orders timely processed? Is feedback provided? Survey employee perceptions of safety commitment and program. Investigate accidents/near misses. 14 Preparing for An Inspection First Impressions are important Train Receptionist/Security Officer Plan for Opening Conference who will attend where will it be held train participants Supervisors/Foremen/Managers are Spokespeople knowledge attributed to company Organize Compliance Records training OSHA 300 Log inspections 15 Preparing for An Inspection (Cont d) Ensure Closure of Inspections Develop a Reporting or Employee Complaint System Enforce Safety Rules o Available Defense Employee Misconduct o Work Rule o Adequate Training o Enforcement of Work Rule o Monitoring for Violations of Work Rule 16 Six Types of OSHA Violations Other than Serious up to $7000 Serious up to $7000 Repeat up to $70,000 Willful up to $70,000 Failure to Abate - $7000 per day Criminal Sanction - $250k - $500K 17 What about the REALLY Big Fines? BP Oil about $150.6 Million in total Egregious Policy Per instance Violations, Per Employee Standard must allow for Per Employee Violations Example: No Fall Protection 10 Employees X $70,000 = $700,000 Is this really allowed under the OSH Act? 18 Per Employee Citations for PPE and Training Violations Effective January 12, 2009, OSHA amended its PPE and training rules in 33 Standards to provide that each instance of failure to provide PPE or training be considered a separate violation subject to a separate penalty. DERAL_REGISTER&p_id=21370 Why? Erik Ho, Houston businessman, hired 11 undocumented workers to handle asbestos removal failed to provide PPE. Cited for peremployee violations of the asbestos standard. OSHRC vacated most of citation because the Standard addressed employees in the aggregate, not individually. Sec. of Labor v. Erik K. Ho, 20 O.S.H. Cas. (BNA) 1361 (OSHRC 2003), aff d, 401 F.3d 355 (5th Cir. 2005). NOTE: Natl. Assn. of Home Builders v. OSHA. On April 16, 2010 the D.C. Court of Appeals rejected the challenge to the amended Standards. 19 What about Area offices in Georgia? Don t forget about Imperial Sugar Company fined $8.7 million as a result of a combustible dust explosion Third largest fine in OSHA history Ultimately paid over $4 million in fines for its GA facility Total of over $6 million for its GA and LA facilities 20 After the Citation 15 days to contest citation / have informal OSHA. Filing your notice of contest - 29 USC 659(a) - employers have 15 working days (from citation receipt) to file a notice of contest. Failure to file within such time means that the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. Effect on OSHA relations 21 What Happens after Contest? Case Moves to Solicitor s Office Attorneys for OSHA (and other DOL agencies) OSHA must prove all elements of citation Most cases settle, but opportunity for hearing After a hearing, cases may be appealed to Review Commission, the Appellate Courts and then U. S. Supreme Court 22 Regulations and Legislation 23 I2P2 More to Come 2010 OSHA held stakeholder meetings on I2P2. On February 7, 2011, Dr. David Michaels told BNA that, The agency is continuing to work actively on a proposal, and we believe it will be welcomed by a range of stakeholders. January 2012 I2P2 White Paper making the case for I2P2. Notice for proposed rulemaking expected in December OSHA Regulatory Agenda - Injury and Illness Prevention Plan (I2P2) I2P2 Elements: Management responsibilities (e.g., establishing a policy, setting goals, planning, etc.); Employee participation; Hazard identification and assessment (e.g., information gathering, inspections, incident investigations, etc.); Hazard prevention and control (e.g., what hazards must be controlled, control priorities, and control effectiveness); Education and training (e.g., training content, relationship to other training requirements, and frequency); and, Program evaluation and improvement (e.g., monitoring performance, and correcting program deficiencies). 25 The 12 Year Trend of Injury and Illness Rates (per 100 FTEs) Each year, these rates reflect the lowest levels since the BLS began reporting data. 26 Recordkeeping & Incentive Programs On September 30, 2009, OSHA published its Recordkeeping NEP, and updated it on September 28, The NEP went out with a whimper in 2012 but, Michaels still stands by the view that employer s are using incentive programs to improperly influence recordkeeping. In a March 12, 2012 Memo, Richard Fairfax, Deputy Assistant Secretary for OSHA stated that safety incentives could affect an employee s rights under Section 11(c) of the OSH Act. Chilling effect on reporting safety concerns What s 11(c)?!? 27 Whistleblowers OSHA investigates multiple anti-retaliation laws Section 11(c) of the OSH Act The employee must show: (1) Protected activity (2) Adverse employment action (3) Causal connection Secretary of Labor has exclusive right to bring action In 2012, 2,787 filed complaints - a record OSHA s aggressive outreach about the program 28 Guidance Documents OSHA s Guidance on Heat and Distracted Driving & Consensus Standards 29 Heat Stress Guidance Permitting workers to drink water or cold liquids (e.g., sports drinks) at liberty; Establishing provisions for a work/rest regimen so that exposure time to high temperatures is decreased; Elements of a heat stress program include: A training program on the effects of heat stress, and how to recognize / prevent heat-related symptoms; An acclimation program for new employees or employees returning to work from absences; Specific procedures to be followed for heat-related emergency situations; OSHA Guidance on its website 30 Distracted Driving NHTSA in 2008, 20% of all crashes involved some type of distraction. Texting While Driving Banned in Appox. 50% of States. GA - No person shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, electronic mail, or Internet data. September, OSHA / Dept. of Transportation Partnership Sample Employer Policies 31 CONSENSUS STANDARDS ANSI STANDARDS Compliance with an ANSI standard can either result in a de minimus violation or no violation CPL , p NFPA National Fire Protection Association Life Safety code ASME American Society of Mechanical Engineers ASTM Amercian Society for Testing and Materials CAUTION Should vs. Shall standards 32 Who Really Cares About OSHA s Guidance or Consensus Standards? You Do! Can be basis for 5(a)(1) Citations AKA, the General Duty Clause of the OSH Act. Recognized hazard Potential Serious Injury Feasible abatement methods 2012 USPS issued willful violation for heat stress hazards - $70k fine. 33 A Tool for Staying On Top of OSHA Developments Quick Takes a bi-monthly newsletter from OSHA. Subscribe on-line at: Baker Donelson s updates 34 Concluding Thoughts Ensure that all prior OSHA citations are resolved. Review your Company s internal complaint mechanisms. Audits, both internal and external, are good tools for determining compliance but they must be closed out. Ensure that PPE and training is up to date and documented. Watch out for safety incentive programs. Remain up-to-date on OSHA regulatory developments. 35 The End 36
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