Introduction to Safety

John Newquist

8 8 2013

Common Law 1800s

• Employee had to prove three area under Common Law

• Worker accepted risk of employment

• Injury was a consequence of the job

• Worker had contributory negligence

• Burden of proof on the injured

Safety Origins

• 1877, the state of Massachusetts passed a law requiring guarding for dangerous machinery, and took authority for enforcement of factory inspection programs.

Safety Origins

• 1884 Pennsylvania Mine Safety Act (PMSA) was passed into law.

Worker Compensation

• 1902 Maryland first workers' compensation law.

• 1904 US Supreme Court Overturns MA law

• 1916 the Supreme Court upheld the constitutionality of state workers' compensation laws.

Safety Organizations

• 1896 NFPA• 1911 ASSE• 1911 ASME for

Boilers and Elevators

• 1913 National Safety Council

• 1918 ANSI

The Jungle

• 1906 Upton Sinclair• “Let a man so much

as scrape his finger pushing a truck in the pickle rooms, and he might have a sore that would put him out of the world; all the joints in his fingers might be eaten by the acid, one by one. “

Cherry Coal Mine Disaster

• November 13, 1909 • 259 Died• Hay bales sent down to feed

mules caught fire from burning oil from kerosene torch.

• 21 men survived in a pocket 500 feet underground and were rescued after 8 days.

• Outcry over tragedy lead to fire safety rules for mines and the Illinois Liabilty Act which lead later to the IL Worker Compensation Act.

Steel Industry

• From 1906-1994, 506 workers have been killed at U.S. Steel Gary Works.

Triangle Shirt Waist Fire

• March 25, 1911• 146 died• Door to an exit opened

inward• Outside stairway

collapse• Fire hoses went only

to 7th floor

Exit doors may have been locked

Walsh-Healy

• Federal contracts must be fulfilled in a healthful and safe working environment.

• “blacklisted" from federal contracts for 3 years.

• 1969 incorporated ACGIH’s TLV’s into the act. (Silica, Absestos were examples)

40 hour work week, over time, minimum wage, ban on child labor were major provisions

Texas City

• April 16, 1947 • Cargo Ship of

Ammonium Nitrate Exploded

• Neighboring Monsanto plant caught fire

• 561 died

Safety Laws

• 1952 Coal Mine Safety Act

• 1966, the Metal and Nonmetallic Mines Safety Act

• 1969, the Construction Safety Act

• 1970 OSHA

Industrial Safety 1969

• 14,500 American workers were killed annually

• Safety and health laws varied state to state

OSHA

• Department of Labor to enforce Safety and Health laws

• NIOSH• OSHRC• Osha Training

Institute• 56 million workers at

3.5 million workplaces in 1971

This Act created OSHA, the agency, which formally came into being on April 28, 1971

General Duty Clause

• Section 5(a)(1)• "a place of

employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees."

Not wearing seatbelts is a common citation under the general duty clause.

1970’s

• Permissible exposure limits for more than 400 toxic substances including specific standard for asbestos

• State plans approved

• IL give back OSHA enforcement -1975

• Several Court Challenges

Barlow -1978

• Warrant requirements of the Fourth Amendment were applicable to OSHA inspections per US Supreme Court

• Probable cause in the criminal law sense is not required.

• Anticipatory warrant procedures used if repeat requests.

Barlow ran electrical and plumbing installation business in Idaho.

Whirlpool - 1980

• 1974 case - The two workers were told to go out on a screen 20 feet above the floor to retrieve small appliance parts which had fallen from a conveyor belt system above.

• Workers sent home and docked 6 hours pay.

• Workers can refuse if reasonable apprehension that death or serious injury or illness might occur as a result of performing the work

AFL-CIO v. American Petroleum Institute -1980

• Supreme Court decision vacates OSHA's benzene standard, establishing the principle that OSHA standards must address and reduce "significant risks" to workers.

Benzene was used in gasoline, paints, and many other chemicals

American Textile -1981

• Supreme court ruled in favor of worker’s health standard that was more stringent yet feasible vs. one that has more favorable cost-benefit analysis It was estimated that 1 in 12

textile workers had Byssinosis, an asthma-like condition in the 1970s.

1980’s• Access to medical and

exposure records

• Hazard communication

• Updated asbestos

• Ethylene oxide, formaldehyde, and benzene.

• Hazardous waste operations and emergency response

• Lockout/tagout of hazardous energy sources.

• Egregious

1984 Bhopal Explosion kills 2000+

OSHA Starts CHEMSEP

1990’s

• Confined Space• Respirators• Personal Protective

Equipment• Process Safety• Forklift Training• www.osha.gov

•Blood-borne Pathogens Standard started in this decade

Emphasis Programs

• Lead• Silica• Forklift• AMPUTATE• Canning• High Hazard

industries

Types of Inspections

• Imminent Danger• Fatalities 800-321-

OSHA within 8 hours• Catastrophes – 3 or

more• Complaints – 5 days• Referrals• General Schedule• Follow Up

Confined spaces could be imminently dangerous.

Inspection Process

• Opening conference• Records and written

safety program review

• Workplace tour• Closing conference• Six month to

complete inspection and issue citations.

Employer Rights

• See identification• Know reason for

inspection• Accompany during

inspection• Take pictures• Know what hazards

foundA CSHO checking for live parts.

Employee Rights

• Employees have the right to:– A safe and healthful workplace

– Know about hazardous chemicals

– Information about injuries and illnesses in your workplace

– Complain or request hazard correction from employer

– Training

– Hazard exposure and medical records

– File a complaint with OSHA

– Participate in an OSHA inspection

– Be free from retaliation for exercising safety and health rights

Employee Rights

• 11(c) protection• Contest abatement

dates• Informal conferences• Records 300/301• Private interviews• Right to a rep in an

interview

Access to Medical Records

• 1910.1020: right to examine & copy records

• Examples of toxic substances and harmful physical agents are:– Metals and dusts, such as, lead, cadmium, and silica.– Biological agents, such as bacteria, viruses, and

fungi.– Physical stress, such as noise, heat, cold, vibration,

repetitive motion, and ionizing and non-ionizing radiation.

Complaints• Workers may file a complaint with OSHA if they

believe a violation of a safety or health standard, or an imminent danger situation, exists in the workplace.

• Workers may request that their name not be revealed to the employer.

• If a worker files a complaint, they have the right to find out OSHA’s action on the complaint and request a review if an inspection is not made.

Employer Obligations

• Provide a workplace free from recognized hazards and comply with OSHA standards

• Provide training required by OSHA standards• Keep records of injuries and illnesses• Provide medical exams when required by OSHA standards and

provide workers access to their exposure and medical records• Not discriminate against workers who exercise their rights

under the Act (Section 11(c))• Post OSHA citations and abatement verification notices• Provide and pay for PPE

Recordkeeping

Employers must: Report each worker death Report each incident that hospitalizes 3 or

more workers Maintain injury & illness records Inform workers how to report an injury or

illness to the employer Make records available to workers Allow OSHA access to records Post annual summary of injuries & illnesses

Violation Types

• Serious – 7k• Willful – 70k• Repeat – 70k• Other – 7k• Failure to Abate -7k a

dayUnguarded machines are top ten cited hazard

Elements of a Violation

• Serious Hazard• Applicable Standard• Employee Exposure• Employer Knowledge

of Condition

Appeals Process

• Informal Conference – 15 days

• Notice of Contest – 15 days

• Administrative Law Judge

• OSHA Review Commission

• US Appeals Court

• Supreme Court

Contacting OSHA

• They do not ask names• No caller ID• No follow-up on

website hits• www.osha.gov

New DOL Head Nominated

• From DOJ• MD Secretary of Labor

2007-2009• Expected strong

positions in Wage Theft, Apprenticeship Programs, and Whistleblowers

• Sequestration will occupy first few months

Thomas Perez

Sequestration?SequestrationDOL cut 7.8-8.2%?Continuing ResolutionsFurloughs?

IMPACT: Training cut to minimumLess Travel. President’s Budget for 2013 calls

for consolidation

Regions 9 and 10Regions 7 and 8Regions 1 and 2

Personnel Development• OSHA Compliance Officers are changing over

– Lot of retirements in the last several years– Averaging a loss of 60 to 80 compliance officers per year over

each of the last five years– Most of the senior leadership (SES and GS-15s) can or will retire

within the next five years

OSHA Leadership to Stay• This is a first in the

history of OSHA.• February 2013• We've launched the new

Severe Violator Enforcement Program to target the worst of the worst violators.

• We've issued a record number of significant and egregious enforcement cases-including the largest fine in OSHA history.

• We've issued three major standards (Cranes, GHS, Shipyards) .

We've strengthened the protection of whistleblowers.And we've launched several new National, Regional and Local

Emphasis inspection programs.

Dr. Michaels – August 2013

• “the agency intends to modernize its Process Safety Management Standard to address chemical hazards in an effort to improve refinery worker safety and decrease the likelihood of catastrophic events, OSHA administrator David Michaels said during an Aug. 6 webchat.”

• The Small Business Regulatory Enforcement Fairness Act review of the Injury and Illness Prevention Program Standard was expected to begin “soon.”

Management CommitmentEmployee TrainingJob Hazard AnalysisHazard ControlsIH SurveyEmployee ParticipationAccident InvestigationCompliance Audits

OSHA In Chicagoland

• 3 offices – Des Plaines, • Aurora, Calumet City• 2200 inspections total

~120 AMPUTATE NEP~120 PIV LEP~50 LEAD NEP~40 SILICA NEP~15 HEXCHROME~15 COMDUST LEP~15 GRAIN LEP~50 LADDER LEP (new)~15 FLAVORINGS NEP~15 RECORDKEEPING NEP

New Leadership in Region V• Nick Walters • 20 Years Experience• Two Criminal

Convictions Won• Lockout Expert• Exceptional fatality

investigator• Auditor• Area Director• National Office

Enforcement Program

Many Media Events are Straining OSHA Resources

Explosions 2013

• Southern IL plant• Cary Paint Plant• Pekin Bottling Plant• Granite City Steel Plant• Plastics Plant (OH)• Sheboygan Chemical Plant

(WI)• Martinville IL Sump

explosion• “The explosion occurred

about 8:15 a.m. inside what Dunn described as a paint booth.”

Confined Space 2013

• Grain Bin Decatur• Wheeling Tank• Paper Mill Vat in MI

• Rescue Provisions are being targeted

• Too often entry is contracted out with the rescues not planned.

Temporary Employee• Carlos Centeno Death• NPR, Mother Jones, Center to

Protect Public Integrity• 50% of top ten employers

with amputations

• Dr. Michaels – Feb 2013• Employer indifference to the working

conditions of many contingent workers is simply unacceptable.

• While some employers may believe they are not responsible for temporary workers, OSHA requires that employers ensure the health and safety of all workers under their supervision and control.

• We need to make it clear to supervisors, staffing and temp agencies, and other employers that even if workers are temporary, they are entitled to the same safety and health rights and should be treated no differently from other workers.

Reg Agenda

• Regarding OSHA standards, Michaels told August 6, 2013 webchat commenters a notice of proposed rulemaking updating the Silica Standard would be issued in the “near future,”

• Construction workers in confined spaces.• Slips, Trips, and Fall Prevention : New

technologies and procedures have become available to protect employees from these hazards. OSHA has been working to update these rules to reflect current technology.

• Electrical Power Transmission.

A Strong Enforcement StartPenalty State Major Issues•$126,000 OH Lead, PPE•$72,800 OH Hex Chrome•$82,170 IL Hearing Conservation Program, Welding, respirators•$51,190 WI PPE, Hand Protection, face protection•$75,000 IL Saws and Machine guarding•$142,100 IL Confined Spaces•$47,000 FL Fall Protection concrete job•$196,000 IL Lead in masonry sandblasting•$56,320 WI Foundry, guards, grinding, electrical•$545,000 OH PSM, chemical release. •$114,000 IL Lockout in Meatpacking•$63,000 OH Conveyor death•$170,500 OH Fall protection, guarding, Steel Mill•$115,000 OH Trenching•$60,000 IL PPE, fitness facility•$105,000 WI Crane, fatality•$56,880 OH Noise, foundry•$44,000 OH Forklift, fall protection’•$98,000 OH Forklift, cranes,•$41,200 IL PPE, acid•$54,000 IL PSM, Food

Other Trends

• Employee by Employee Citations– PPE Standard– LOTO procedures

• Enhanced Use of General Duty Clause– Combustible Dust– Ergonomics

– Workplace Violence – New chemicals (not listed on Z tables)– Arc Flash – Arc Blast– Heat Illness– Fall Protection

General Duty Clause

• April 2013

• WI

• $19,250 Repeat

• OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that:

• (a) Employees handling refractory ceramic fiber and performing work such as mixing, were exposed to harmful levels of airborne refractory ceramic fiber measured as high as 0.64 fibers per cubic centimeter of air and were exposed to the hazards of lung cancer, mesothelioma, and other adverse respiratory health effects including irritation and compromised pulmonary function.

Recordkeeping

Scope of Documents for Recordkeeping Inspection

• OSHA Forms 300, 300A and 301

• Medical records AT the clinic you use

• Worker’s compensation records• Insurance records• Payroll/absentee records• Company safety incident reports• Company first aid logs• Disciplinary records relating to

injuries and illness

54 | © 2013 Seyfarth Shaw LLP

DART rate

• 1.8 DART in 2011• 3.5 TCIR in 2011• Days Away Restricted

Transfer• Total Incident Case

Rate

• #cases x 200,000/#hours

Incentives

• Evaluate policy. Address issues.

• Does it encourage employees to underreport in exchange for prizes or other rewards?

• Are Employees Being Disciplined for getting hurt?

• Conduct employee interviews focused on whether employees have been trained to report injuries or illnesses or discouraged to report.

• OSHA favors rewards for reporting hazardous conditions, for recommendations for safety improvements,participation in safety committees, etc.)

Ergonomics

OSHA has announced that it will once again begin enforcing ergonomics violations through the General Duty clause, Section 5(a)(1)

General Criteria:• Conduct review of OSHA Logs, worker’s compensation, first aid to

identify nature of prior ergonomic-related injuries/illnesses• Perform individual job assessments for ergonomic stressors• Develop engineering or administrative controls to address stressors• Conduct employee training on signs and symptoms of cumulative

trauma disorders (CTD’s) and establish employee reporting procedure

• Develop medical surveillance program to monitor CTD’s and provide treatment

• Enforce use of engineering or administrative controls through discipline

• Maintain appropriate OSHA recordkeeping, e.g., OSHA 300 Log and supporting documentation

SVEP Criteria

> 1 W, R or FTA based on a serious violation related to a death of an employee or three or more hospitalizations

> 2 W, R or FTA based on high gravity serious violations related to a High-Emphasis Hazard

> 3 W, R or FTA based on high gravity serious violations related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard

Any Egregious Case

FATALITY

NON-FATALITYNON-FATALITYPotential for release of highly hazardous chemicals (PSM)

EGREGIOUS

Employee Misconduct Defense

• More important than ever to establish strong unavoidable employee misconduct defense.

• All four elements required(1) Program for the specific hazard, e.g. fall, electrical,

lead, asbestos, cadmium, forklift

(2) Employee training (documentation)

(3) Prior enforcement (disciplinary records)

(4) No reasonable opportunity for supervisor to identify and correct hazard

FY 2008 – FY 2012estInspections Conducted

FY 2008 – FY 2012% Programmed vs. % Unprogrammed

FY 2008 – FY 2012% Complaint Inspections

FY 2008 – FY 2012% Follow-Up Inspections

FY 2008 – FY 2012% Inspections In-Compliance

FY 2008 – FY 2012% Total Violations Issued As Serious

FY 2008 – FY 2012% NIC Inspections With Only Other-Than-

Serious Violations Cited

FY 2008 – FY 2012Average Penalty Per Serious Violation (Private

Sector)

Why the $ Jump?

• April 22, 2010 OSHA issues revised penalty policy• OSHA believes penalties are too low to deter violations• Under revised policy:

1. OSHA will increase base penalty by 10% for any history of high-gravity serious, willful and repeat violations over the last five years

2. At informal conference area directors cannot solely:• Reduce or withdraw willful or repeat citations• Reduce the penalty by more than 30% Unless Sweeteners

3. Look back 5 years to employer citation history for Repeat citations (previously 3 years)

FY 2008 – FY 2012% Construction Inspections

FY 2008 – FY 2012estSignificant Cases

Note: FY11 & FY12 figures include cases under OSHA’s revised significant case procedures and new penalty system.

FY 2008 – FY 2012Average Hours Per Safety Inspection

FY 2008 – FY 2012Average Hours Per Health Inspection

FY 2008 – FY 2012Fatality Investigations

*Includes some catastrophes which, due to unfinalized OIS reports, cannot yet be separated out

Citation Avoidance

Ensure and training and programs are up to date

–GHS Program, –Lock Out Tag Out –Confined Space Entry –Blood Borne Pathogen  –Emergency Action Plan,–Powered Industrial Truck–Respiratory Protection –Hot Works–Process Safety Management Program

Citation Avoidance

• Audits need to complete

Lockout: annual periodic inspection of energy control procedures is complete and documented; Confined Space: annual rescue training for confined space rescue employees;Forklifts: conduct 3 year fork truck driver recertification; Fire: annual fire extinguisher training, etc.

• Do you have software in place that tracks training deadlines?

Citation Avoidance

• Conduct Internal Site Inspections

• Understand that internal reviews are discoverable by OSHA and others

• Be prepared to promptly fix and/or address what you find

• Documenting Corrective Action/Close Out is as important as finding action items

Citation Avoidance

• Use Outside Set of Eyes for a fresh perspective

• Know and use your own OSHA history– Plant specific citations

– Company wide citations• Large employers beware.

OSHA perceives a corporate disconnect

External Audits

OSHA can subpoena these audits.

Two Large Penalty cases used the audit findings against the company. – Outside audits are not

privileged unless directed by a counsel

– Company and Outside Counsel can retain consultants to create arguments the audit may not be discovered by OSHA etc.

Plain View Doctrine

– Compliance officer can issue citations for any violations in “plain view.”

– If Compliance Officer doesn’t see it he/she can’t cite you for it.

Tips during Inspections

• Immediately Correct Unsafe Conditions Identified by The Compliance Officer Without Admitting That The Condition Constitutes a Violation

– May avoid the citation – May lessen the

classification or penalty of a citation

Letting a violation exist for weeks during an OSHA inspection can be used to show duration.

OSHA Interviews

– Non-Management Interviews

• Employee rights to Union or other Representative

• “Tell the truth”

– Management Interview• Right To Company

Rep/Counsel– Avoid the “casual”

interview– Avoid Saying “I Don’t

Know”

Remember: Everything is on the record. Do not engage in idle conversation concerning safety issues.

Volks Decision - 2012

• In 2006, OSHA issued a citation alleging that Volks had failed as long ago as 2002 to record injuries on its Form 300 injury logs and to create Form 301 injury reports.

• Volks claimed that the citations were untimely because the Occupational Safety and Health Act has a 6-month statute of limitations.

“No citation may be issued … after the expiration of six months following the occurrence of any violation.”

All Crane Decision - 2012

• Appeals Court ruled that an employee does not actually need to be exposed to a hazard before an employer can be found in violation of an OSHA standard.

• Rather, the Sixth Circuit held that the fact that an employee could have been exposed to a hazard is enough to find an employer in violation of an OSHA standard.

OSHA needs four elements to cite:-Hazard that could cause harm-Employee Exposure-Employer Knowledge of Condition-Applicable Standard

Comtran August 2013

• Comtran• Big loss to OSHA in court• " The court first determined that

the foreman knew or should have known about his own misconduct, notwithstanding his testimony that he was not aware of the excavation and cave-in hazards because he became "lost" in his work“

• Work Rule• Inspection• Training• Enforcement

• The analysis must be different when the violation at issue is committed by only a single supervisor.

• Six foot deep hole with 4 feet of spoil at edge. 

BP Husky 2013• 41 Willfuls vacated• “ Because the AVD improperly imposes a

requirement on employers not found in the cited standards, the Secretary failed to establish BPP and BP-Husky were not in compliance with the appropriate RAGAGEP.”

• 1) How many accidents resulted not complying with the consensus standard.

• 2) What are other companies that are complying with the rule.

• 3) What is the company's specific knowledge of the rule

• 4) Why are they not complying to the rule?

FY 2012Top 10 Most Cited Standards

(General Industry)

1. Hazard Communication

2. Respiratory Protection

3. Electrical, Wiring Methods

4. Powered Industrial Trucks

5. Lockout/Tagout

6. Electrical, General Requirements

7. Machine Guarding

8. Personal Protective Equipment

9. Guarding Floor & Wall Openings & Holes

10. Bloodborne Pathogens

Quick Quiz

• How much can a Willful Violation be? ____• Informal Conferences can be requested within ___

days of receiving a citation.• OSHA must issue a citation within __ months of

its opening conference.• Catastrophes of ___ or more hospitalized must be

reported to OSHA within ____ hours.• What is the address for the OSHA web site?

_____________