Upload
mike-marsland
View
215
Download
3
Tags:
Embed Size (px)
Citation preview
1
OSHA BEST PRACTICES
Emergency Response ThroughOSHA Inspection
May 11, 2012
ACRP GENERAL ASSEMBLY
2
David Johnson, Partner, SmithAmundsen, LLC
Stephen Yates, President, Optimum Results
Presenters
3
CATASTROPHIC LOSS
PLANNING AND RESPONSE
4
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
5
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
6
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.
7
Pre-Incident Risk Analysis
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
8
Pre-Incident Risk Analysis
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
9
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
10
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.
11
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
12
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
13
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
14
Accident Investigation
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
15
Accident Investigation
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?
16
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?
17
Accident Investigation
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.
18
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
19
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
20
Rapid Response Activity
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
21
Rapid Response Activity
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
22
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.
23
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
24
THE OSHA INSPECTION
FROM OPENING CONFERENCE THROUGH
NOTICE OF CONTEST
25
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
26
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
27
Crackdown on Enforcement
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
28
Crackdown on Enforcement
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
29
Crackdown on Enforcement
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
30
Crackdown on Enforcement
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
31
Crackdown on Enforcement
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
32
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
33
OSHA Violations
Potential Citations:o Other than serious
o Serious
o Willful
o Repeat
o Failure to abate a hazard by OSHA’s deadline
34
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
35
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
36
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
37
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
38
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
39
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
40
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
41
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!
42
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
43
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
44
The Opening Conference
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
45
The Opening Conference
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
46
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
47
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
48
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
49
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
50
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
51
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
52
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
53
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
54
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!!!!
55
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
56
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
57
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
58
Employee Interviews
OSHA’s rights:
o Right to interview the employee in private if employee consents
o Right to have truthful responses to questions
59
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
60
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
61
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
62
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
63
Issuance of Citations
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)
64
Issuance of Citations
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
65
Issuance of Citations
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
66
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
67
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
68
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
69
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
70
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
71
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.
72
Notice of Contest
After the complaint and answer are filed, case goes to OSHRC (Review Commission)
Majority of cases settle before going to hearing
73
Questions?