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PRESENTED BY
Melissa Bailey (Washington, D.C.)
EEIOSHA Update – May 3, 2016
Agenda
Lessons learned from injury reporting rule Proposed OSHA Rules Increased Civil Penalties Enforcement Weighting System Criminal Enforcement Significant Decisions Section 1910.269 FMCSA Rulemaking
Reporting Injuries to OSHA
Reporting Serious Injuries
Must now be reported to OSHA within 24 hours Hospitalization of one or more employees Amputations Loss of an eye or eyes
Must be reported to OSHA within 8 hours Fatalities
Effective January 1, 2015
2015 Injury Reports
Sales
RRI 62%Inspections 38%
10,388 Reports
Rapid Response Investigation (RRI)
Employers must conduct own investigation and report root cause and abatement measures to OSHA within 5 days
Failure to respond or provide adequate response may trigger on-site OSHA inspection
RRI “Safe Harbor”
RRI report not a roadmap to establish a violation if “employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition”
Majority of reports will involve a serious hazard
Which “serious hazard”? Preexisting hazards identified in the RRI report? Hazards identified during the inspection?
RRI “Safe Harbor”
OSHA has a history of ignoring internal policies with regards to an employer’s own findings, e.g. voluntary safety and health audits
Does not apply to related civil litigation
Practical Tips for RRIs
Do not complete non-mandatory OSHA form Provide enough information to satisfy
OSHA, but not so much that they want to inspect
With more interaction between frontline management and OSHA – train management
Increased Penalties for Failure to Report
Minimum $5000 penalty for failure to report a qualifying workplace injury (matches California)
Up to $70,000 for willful violations, i.e.,employer intentionally fails to report
OSHA believes approximately 50% of injuries are not reported
Proposed OSHA Rules
Current Regulation
Submit 300 logs, 300A, 301 reports to OSHA when requested
Proposed Regulation
Employers with 250+ Quarterly – 300 &
301s Annual - 300A
Employers with 20+ in certain industries Annual – 300A
Publication Of Electronic Data
Form 300A: In its entirety 300 Log: In its entirety except employee
names Form 301: All information on the right-hand
side
How Will The Public Use The Information?
Unions: Use to organize and in bargaining “We represent the NJ plant and its rates are far
below the TX plant we are trying to organize –you should vote us in”
“Based on rates at various plants, more emphasis on safety is required at certain plants”
Plaintiffs’ attorneys: Use to establish gross negligence to overcome workers’ compensation bar
How Will OSHA Use The Information?
Prioritize to perform more inspections at worksites with high incident rates or certain types of injuries
Establish willful violation based on reports of similar accidents occurring at multiple locations
Current Retaliation Protection
Section 11(c) of the Act – individual employee must file a complaint with OSHA
Recordkeeping Rule Record injury or illness in 7 days Employee must be able to report an injury or
illness promptly
Retaliation Protection in OSHA Proposal Inform employees of right to report injury or
illness Establish easy system for employees to
report injury and illnesses Prohibition against disciplining employees
for reporting injuries or illnesses
Implications – OSHA as the EEOC? OSHA would not be required to rely on
employee to file whistleblower complaint OSHA learns that injured employee discipline for
not using fall protection Employer has not disciplined non-injured
employees for violating the same rule Has the injured employee been discriminated
against?
Implications – OSHA as the EEOC? Employees who are injured at work not
entitled to the same benefits Perfect attendance award Bonus
Incentive/disincentive plans could become per se unlawful
Abatement of the violation could include reinstatement and back pay
Biggest issue: OSHA second-guessing disciplinary actions taken
Status
Undergoing White House OMB review -projected issuance date of March 2016 has passed
OSHA’s IT ability to handle data Dealing with private information Time/resources for employers/state plans to
implement to new rules No published language for proposed anti-
retaliation provisions
Proposed Subpart D
Proposed Subpart D
Employers may choose fall protection for unprotected sides: Guardrail system Designated area Safety net system Travel restraint system Personal fall arrest system
Exception for working side of some platforms where guardrails not feasible
Proposed Subpart D
Employers may also choose fall protection for floor holes: Covers Guardrail system Travel restraint system Personal fall protection system
OSHA planned to address rolling stock/mobile equipment
Status
OSHA withdrew proposed rule from OMB review Until recently, silica and recordkeeping were
being reviewed – is that too many? Concerns about the rule that could not be fixed
quickly? OSHA just announced they will resubmit
proposed rule for OMB review OSHA says final rule expected by end of
2016
October Surprise: Higher Civil Penalties
Penalty Increase
New budget mandates OSHA to increase penalty for the first time since 1990
Initial catch-up adjustment to penalties based on percentage difference between consumer price index (CPI) in October 2015 and October 1990
July 1, 2016: OSHA must publish interim final rule
August 1, 2016: New penalties must go into effect
Initial Adjustment
Approximately 80% increase Other-than-serious: Max $12,600
(currently $7,000) Serious: Maximum $12,600 (currently
$7,000) Repeat: Maximum $126,000 (currently
$70,000) Willful: Maximum $126,000 (currently
$70,000) Failure to Abate: Maximum $12,600 per
day (currently $7,000)
Penalty Increase – Initial Adjustment OSHA may impose smaller initial penalties if
penalties will have a “negative economic impact” or impose “social costs” that outweigh the benefit of increasing penalties
Not likely to happen under current administration given its “regulation by shaming” tactics that include high penalties and negative press releases
What will OSHA do administratively?
Annual Adjustment
Beginning in 2017, no later than January 15 of each year OSHA must adjust penalties every year using the CPI
Penalties will increase annually with inflation
Enforcement Weighting System
Enforcement Weighting System
Recognition that all inspections are not equal
New metric OSHA’s national office will use during its end of the year evaluations
Different types of inspections assigned a different number of enforcement units
Enforcement Unit Table
Type of Inspection Enforcement Units
Significant Case ($100K+ penalties) 8
PSM 7Ergonomics 5Exposure to Substance not Regulated by a Standard
3
Workplace Violence 3Fatality/Catastrophe 3Combustible Dust 2Informal Complaint 1/9thRRI 1/9th
Implications
Designed to encourage comprehensive inspections that focus on complex safety and health hazards
Rewards Area Offices for driving up the total penalty amounts
Identifies hazards OSHA most likely to focus on during an inspection
Increased Criminal Enforcement
Criminal Provision under Section 17(e) of the OSH Act
Section 17(e) – An employer who Willfully violates a specific OSHA standard, Violation causes the death of an employee
May be punished by $10,000 and/or Up to 6 months in prison
Criminal Penalties & EnforcementEmployers may face other criminal sanctions, including: Falsifying OSHA documents – Section 17(g) Advance notice of an OSHA inspection –
Section 17(f) Title 18 Criminal Offenses
Perjury during OSHA proceedings Obstruction of Justice Conspiracy Witness Tampering Mail Fraud
Environmental – Endangerment Crimes
December 2015 – New Initiative
DOJ’s Environmental Crimes Section (ECS) of the Environmental and Natural Resources Division will prosecute worker safety violations; environmental crimes; and other federal crimes under Title 18
MOU between DOJ and DOL calls for DOL to select and prepare prosecution referrals and for DOJ to consider the referrals
DOJ has trained 100s of OSHA compliance officers to recognize criminal violations
Implications
Unclear whether the new initiative will result in more criminal prosecutions
Employers should expect OSHA to probe for possible criminal violations during an inspection even if there is no fatality
California is different…
Upper Big Branch – Blankenship
In 2010, explosion in the Upper Big Branch mine killed 29 employees
DOJ brought criminal charges against Don Blankenship – former CEO of Massey Energy, related to operations at UBB but not changes with directly causing the explosion
As CEO from 2000 to 2010 Cited approximately 835; approximately 500 alleged
company was ignoring safety rules Allegedly had system to warn underground employees
when MSHA arrived at mine to hide violations Allegedly exposed miners to toxic coal dust Allegedly mislead investors in SEC filings
Upper Big Branch – Blankenship
Jury Verdict Guilty of misdemeanor mine-safety conspiracy
charge for making false statements about the company’s safety practices which carries 1 year maximum sentence
Not guilty for security-related felony charges that could have lead to 30 years in prison
Sentenced to 1 year in prison and a $250,000 fine
Blankenship just filed an appeal
Upper Big Branch – Blankenship
Jury told after the verdict that the securities charge rather than the safety charge carried the highest penalty – purportedly shocked
Verdict has energized employee advocates Will the press make it more attractive to
seek criminal penalties?
Revised Chemical NEP
Revised Chemical NEP
Same model as existing NEP Not a Program Quality Verification audit Select particular elements of the standard to inspect
Revised NEP will target all EPA RMP-covered facilities
Will impact power companies that have TQs of ammonia or chlorine
Percentage of inspections in each region based on the number of sites covered under the NEP
Inspectors will use combination of “static” and “dynamic” questions
Implications
More cooperation between OSHA and EPA to perform joint inspections?
Inspections under revised NEP may be more aggressive; similar to the inspections that were conducted under the refinery NEP
Collecting information for justification to revise PSM standard?
Significant Decisions
Davey Tree
Two Review Commission cases Employees fatally injured while performing
line clearance tree trimming Cited under logging standard – 1910.166 Does the logging standard apply to line
clearance tree trimming?
Davey Tree –Review Commission Decision
Review Commission issued decisions holding that the logging standard does not apply to the line clearance tree trimming work
Plain meaning of “logging operation” does not including line clearance tree trimming
Logging operation involves felling trees and removing them
Deference to OSHA not appropriate
Davey Tree – What’s Next?
OSHA has until April 26 to appeal decisions in federal court
The Tree Care CPL is essentially worthless OSHA “fills in the gaps” with regard to tree
removal using a new Tree Care standard or general duty clause violations based on ANSI standard
Quinlan – 11th Circuit Decision
Foreman and subordinate employee working on a wall and roof platform without fall protection
Foreman was supervisor on-site Does the fact that the foreman/supervisor is
committing the violation along with the employee mean that knowledge of the violation is imputed to the employer? YES
Quinlan – 11th Circuit Decision
In ComTran, the 11th Circuit held that a supervisor’s knowledge of his own violative conduct is not imputable to the employer unless the supervisor’s misconduct was foreseeable
Court held that ComTran not applicable where a supervisor and subordinate employee work in concert to violate the Act – citations upheld
SJ Louis Construction
3-person crew dispatched in response to odor complaint from homeowners who lived near a sewer line SJL was redesigning
Fumes and signage indicated sewer line was active
Crew removed manhole cover and the crew leader entered the manhole without performing test, completing the PRCS permit, or wearing PPE and became incapacitated
Crew leader and one crew member who attempted to rescue the crew leader died of H2S exposure
SJ Louis Construction
Citation alleging violations of the general industry confined space standard
OSHA granted motion to amend citation to allege a violation of the general duty clause SJL engaged in construction but the construction
industry confined space standard not issued at time of accident
Judge affirmed the general duty clause citation
SJ Louis Construction
Review Commission vacates because OSHA failed to prove knowledge SJL did not have constructive knowledge
Did not tell crew leader not to enter BUT based on training and experience he could
determine whether it was safe to enter SJL’s confined safety program was adequate
Employees were trained Safety employee performed random & scheduled field
safety audits Safety rules enforced
SJ Louis Construction
Crew leader’s knowledge of his own misconduct not imputable – not foreseeable based on adequate safety program (followed 5th Circuit Yates decision where supervisor’s misconduct must be foreseeable)
How would this have come out in another circuit?
Lesson: Always harder to prove lack of knowledge/UEM with a supervisor, but can be done
Section 1910.269
Enforcement date for MADs requirements for voltages of 72.6 to 169 kv and 169.1 kvor more delayed until February 1, 2017 1910.269(l)
All other provisions are now in effect
Section 1910.269
What enforcement issues are EEI members seeing?
FMCSA Rulemaking
Safety Fitness Determinations
Congress ordered FMCSA to study: Accuracy of CSA system in identifying “high risk”
carriers Methodology used to identify carriers for
enforcement, including the connection (if any) between violations and crash risk
FMCSA given 18 months to perform the study and report back to Congress
Proposed Safety Fitness Determination Rule FMCSA proposes a regulation on Safety
Fitness Determinations FMCSA proposes an “absolute failure
standard” that would depend on the CSA algorithm Rule intended to remove “high risk” carriers from
operating by using CSA data Comments due May 23, 2016
How can FMCSA propose a rule based on CSA data when Congress has asked for a study on CSA data?
Proposed Driver Trainer Rule
On March 7, 2016, FMCSA issued proposed rule for mandatory driver training developed through negotiated rulemaking
Rulemaking mandated by MAP-21
Current Driver Training Rule
No specific driver training requirements Must pass CDL skills test administered by
state agency Must receive training in 4 areas:
Driver qualifications Hours of service Driver wellness Whistleblower protection
Definition of Entry-Level Driver
Current definition: Less than one year of experience driving a CMV
Proposed definition First-time applicants for CDL Drivers upgrading to Class A or B CDL Drivers adding hazmat, passenger, or bus
endorsement to their license
Refresher training for drivers reinstating revoked or suspended CDL
Current CDL holders would be grandfathered in
CDL Training Curriculum
CDL training must consist of two components: Theoretical training (additional requiremetns
for HazMat) Behind-the-Wheel training
Theoretical CDL Training
Must cover four main areas Basic operation Safe operating procedures Advance operating practices Non-vehicle activities
Similar to current training requirements
BTW CDL Training
Class A: 30 hours minimum 10 hours on driving range 10 hours on public road or 10 public road
trips (50 min each) 10 hours at the trainers discretion
Class B: 15 hours minimum 7 hours on a public road 8 hours at the trainers discretion
Refresher Training Curriculum
Must include theory and BTW training but no minimum hour requirements
Theory training not as extensive as entry-level training
BTW training: Driver must demonstrate proficiency to safely operate CMV on public road
Trainer Providers
Trainer must register with FMCSA Training Provider Registry (TPR)
Driver-trainee must receive training from a registered trainer
Driver-trainee will receive certificate from trainer after completion
Trainer must upload training certificate to TPR
Status
Comment period just closed on April 6 Final date unknown Effective date would be three years after
final rule issued
Title Goes Here
PRESENTED BY
Melissa Bailey (Washington, D.C.)
EEIOSHA Update – May 3, 2016
