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ASSE San Francisco ChapterASSE San Francisco ChapterProfessional Development Professional Development
Conference Conference
Current Trends at OSHA: What’s Hot in 2010
Fred WalterWalter & Prince LLPFebruary 23, 2010
www.walterprincelaw.com
Table of ContentsTable of Contents
DOSH Enforcement◦Heat Illness (cont’d)◦Heat from the Feds◦Heat on Controlling Employers (cont’d)◦Heat on Employers re: penalties
© Walter & Prince LLP 2009
Table of ContentsTable of Contents
OSHAB (The Appeals Board)◦Heat from Labor, Legislature◦Heat on Employers re: Abatement◦Heat on Employers re: 342(a)
© Walter & Prince LLP 2009
Table of ContentsTable of Contents
Worker’s Compensation Appeals Board◦Serious & Willful Misconduct◦Heat on Crane Owners
© Walter & Prince LLP 2009
Table of ContentsTable of Contents
Superior Court and Beyond◦MEW Controlling Employers◦MEW: All Employer’s Duty to Report Hazards
© Walter & Prince LLP 2009
DOSHDOSH
Most cited sections:◦3203: Illness and Injury Prevention Program◦3395: Heat Illness Prevention◦1509: Construction Application of IIPP◦5194: Hazard Communication◦6151: Portable Fire Extinguishers
© Walter & Prince LLP 2009
DOSHDOSH
Last Year: Shifting the Paradigm◦DOSH as a service-oriented agency◦Employers as Clients
This Year: DOSH as Fed/OSHA’s arm◦Fed/OSHA Audit◦“As Effective As…”
Citation for each Affected Employee New definition of “serious” physical harm
© Walter & Prince LLP 2009
DOSHDOSH
Heat Illness◦DOSH is enforcing 3395 as a strict liability rule:
Any incidence of HI means that the reg was violated.
◦DOSH is enforcing 3395 as they would like it to read, not as the SB wrote it.
◦DOSH: All heat illness is serious illness
© Walter & Prince LLP 2009
DOSHDOSH
More Heat than Light on 3203◦The General Duty Clause: “If you had an
accident, there must have been a failure to train, or to ID a hazard, or both.”
◦The Junior Woodchuck Handbook: All job-related special programs (e.g., fall protection, traffic control) must be in your IIPP.
© Walter & Prince LLP 2009
DOSHDOSH
Some Confusion on 342(a)◦Who is an Employer for the purpose of
reporting?◦Can the Employer designate someone not an
employee to report?
© Walter & Prince LLP 2009
DOSHDOSH
Integration Issues◦Can IH’s become Safety Engineers?◦Ex: OPU in heavy equipment death case◦Ex: Three visits to a bakery on a machine
guarding case; one additional citation for a dead cockroach
© Walter & Prince LLP 2009
DOSHDOSH
Controlling Employer Issues◦Harris Construction hearing in March◦An active safety program is good, right?◦How many controlling employers can dance on
a construction site?
© Walter & Prince LLP 2009
DOSHDOSH
Aggressive Penalty Settlement Positions◦Are penalties controlled by regulation?◦Forget your defense, it was a serious injury.◦Add: Stipulated penalties
© Walter & Prince LLP 2009
DOSHDOSH
Aggressive Penalty Collection Efforts◦DIR Accounting Office not waiting for decisions,
orders to become final◦Labor Code allows DOSH to report orders
immediately after issuance◦Labor Code allows DIR to apply for judgment
upon notice of unpaid penalty
© Walter & Prince LLP 2009
DOSHDOSH
New Definition of “Serious” Physical Harm◦Now: “…Substantial probability of death or
serious physical injury or illness.” Serious Injury
◦Loss of a member of the body◦Serious permanent disfigurement◦Hospitalization for more than 24 hours for other than
observation
© Walter & Prince LLP 2009
DOSHDOSH
New Definition of “Serious” Physical Harm◦Next:
“Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job.”
“Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor or other licensed [HCP].”
© Walter & Prince LLP 2009
Appeals BoardAppeals Board(From our 2009 Presentation)(From our 2009 Presentation)
Criticism from Labor◦Board needs to be more punitive ◦More appeals need to be forced to hearing◦Too many settlements◦Negotiated penalties do not spur changes in
behavior
© Walter & Prince LLP 2009
Appeals BoardAppeals Board
Heat from Labor, Legislature◦“Pay less attention to the law. Do justice.”◦-- January Advisory Committee meeting
Abatement Pilot Project◦Serious/higher citations with abatement issues◦Target: Six months to decision
© Walter & Prince LLP 2009
Appeals BoardAppeals Board
Advisory Committee meeting◦Thursday, February 25, 2010 – Sacto◦Proposed revisions of procedural rules
Allow testimony by conference call or affidavit Presume expertise of DOSH inspectors Shift burden of proof to employers Adopt Abatement “Rocket Docket”
© Walter & Prince LLP 2009
Appeals BoardAppeals Board
Beyond the Procedural Fight:◦342a reductions: not so fast◦Are appealed criminal convictions admissible?
© Walter & Prince LLP 2009
Serious & WillfulSerious & WillfulMisconductMisconduct
Continued increase in filingsBigge Crane decision:
◦Crane operators as management
© Walter & Prince LLP 2009
Superior Court and BeyondSuperior Court and Beyond
The Harris Case (March, 2010)◦Who has to prove controlling ER status?◦Is an affirmative defense available?
© Walter & Prince LLP 2009
Superior Court and BeyondSuperior Court and Beyond
California Court of Appeals◦Suarez v. Pacific Northstar Mechanical, Inc.◦All ER’s on MEW have duty to report hazards
© Walter & Prince LLP 2009
ResourcesResources
Walter & Prince LLP◦www.walterprincelaw.com
E-zines, articles and further linksFed/OSHA Establishment Search
◦www.osha.gov/oshstats/index.htmlCal/OSHA Regulations
◦www.dir.ca.gov/samples/search/query.htmCal/OSHA Enforcement (DOSH)
◦www.dir.ca.gov/DOSH/dosh1.html Cal/OSHA Appeals Board
◦www.dir.ca.gov/OSHAB/oshab.html
© Walter & Prince LLP 2009