OSHA Primer ABA OSH Law Committee Midwinter Meeting

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1 OSHA Primer ABA OSH Law Committee Midwinter Meeting March 13, 2012

2 Presenters Steve Yokich, Cornfield and Feldman Greg Dillard, Vinson & Elkins Orlando Pannocchia, Office of the Solicitor, OSH Division

3 OSHA and the OSH Act Occupational Safety and Health Administration (OSHA) Authority both to set and enforce workplace health and safety standards. OSH Review Commission provides appellate review. OSH Act of 1970 USC, title 29, chapter 15 Applies to all employers "engaged in a business affecting commerce who has employees, but does not include the United States or any state.

4 Alternative State Enforcement States may enforce workplace safety and health laws if state establishes a plan that is at least as effective as OSH Act; otherwise there is preemption. Procedures/structure under state plans may vary. Twenty-five states have approved plans. Cooperative with federal OSHA. Follows some federal NEP.

5 OSHA Organization Secretary of Labor: Hilda L. Solis Assistant Secretary of Labor for Occupational Safety and Health: David Michaels Regional Office Administrators (10 Regional Offices)* Area Offices (90 Area Offices)* Inspectors (approximately 2200 inspectors) * Some regional and area offices may be modified/combined in 2012

6 OSHA Overview Typical Agency Make Make Rules Rules Enforce Rules Rules Adjudicate Rules Rules Alleged Violations OSHA Occupational Safety and Health Review Commission Make Make Rules Rules Enforce Rules Rules Adjudicate Rules Rules Alleged Violations

7 Making Rules Standard Setting Procedure: Preliminary activities and development of proposed rule ending in publication of notice in Federal Register (33-60 months) Opportunity for interested parties to comment and participate in hearing on the record (2-12 months) Analysis of rule in light of hearing and comments; publication of final rule, based on substantial evidence in the record as a whole (20-40 months) Pre-enforcement procedural and substantive review is available in a federal court of appeals by any person adversely affected by enforcement of the rule. Time consuming process Standards: Specification vs. Performance-Based Approaches: Single hazard or condition vs. Systemic

8 Enforcing Rules Inspections Principal means for enforcement of standards (40,215 inspections in FY2011) Programmed Inspections Unprogrammed Inspections Imminent Danger Fatality/Catastrophe Complaint Advance notice prohibited Follow-up

9 Other Compliance Initiatives Consultative Visits Voluntary Protection Programs (VPP) Focused Inspections in Construction National Emphasis Programs (NEP)

10 Inspection How it Works Inspections six basic elements 1. Arrival on site 2. Opening conference 3. Inspection walkaround 4. Interviews Hourly Management Union 5. Document requests 6. Closing conference

11 Arrival on Site DON T: Refuse entry to the inspectors (even without a warrant). DO: Know that OSHA will present credentials. DO: Notify management and legal counsel when OSHA arrives. DO: Know management rights regarding when to be present throughout the inspection. DO: Know employee organizations rights regarding when to be present throughout the inspection.

12 Opening Conference DO: Ask to see the written complaint if the inspection is the result of a formal complaint. DO: Confirm the scope of the inspection. DO: Require the inspector to follow all workplace safety procedures (hard hat, hearing protection, etc.). Safety videos and rules; training is another story DO: Identify areas of the workplace that might reveal confidential secrets and confirm that photographs of those areas will be marked as confidential be selective.

13 Inspection Walkaround DO: Allow inspector to take pictures or measurements unless trade secrets are involved. DO: Think about taking your own pictures or measurements. DO: Know the proper scope of the inspection, including physical locations within site. DO: Correct unsafe conditions observed during the walkaround.

14 Interviews DO: Know that OSHA has a right to interview hourly employees in private. DO: Know that there is a debate whether hourly employees may ask for representation during an OSHA interview. DO: Know that management employees have a right to representation during an OSHA interview. DO: Provide reasonable access for interviews.

15 Document requests DO: Ask OSHA to put the requests in writing. DON T: Demand a subpoena. DO: Understand when, where, and how the documents are to be produced. DO: Make sure that records produced are complete and accurate. DO: Keep a list and copy of all documents produced.

16 Closing Conference DO: Tell the inspector where to send the citations. DO: Ask questions about which specific standards are being cited and the classification of the citation. DO: Take good notes throughout the conference. DON T: Attempt to argue or settle citations with the inspector during the conference. DON T: Admit to violations or recognize alleged hazards.

17 Area Director Informal Settlement Process 29 CFR Employer may request an informal conference with Area Director once citations are issued. Conference and settlement must be completed within 15 working days of receiving the citation. Area Director is authorized to enter into settlements that revise citations and penalties while avoiding legal disputes and correcting hazards.

18 Adjudicating Citations Notice of contest: Must be written and filed within 15 work days from date citation is received. May be mailed, but must be postmarked. 15 workdays cannot be extended. Employers may contest any aspect of the citation. Employees may contest reasonableness of the proposed abatement period. Hearing and appeals: Procedures vary in state plans.

19 ALJ Determination Similar to normal litigation Secretary of Labor files complaint Respondent files answer Discovery Hearing Post-Hearing Briefs Decision (non-precedential)

20 OSHRC Review ALJ s decision can be appealed to 3-person* Commission. Post-hearing procedures --- time requirements, what can be appealed, who can appeal are spelled out in OSHRC Rules thru Become intimately familiar with OSHRC s rules for both ALJ and Review Commission procedures. Commission conducts de novo review of ALJ decision. * Currently there are only two Commission spots filled

21 Judicial Review OSHRC decisions can be appealed within 60 days directly to the Court of Appeals in either: 1) the circuit in which the violation occurred; 2) the circuit in which the employer has its principal office; or 3) the DC Circuit. Standard of review substantial evidence Fabi Constr. Co. v. Secretary of Labor, 508 F.3d 1077 (D.C. Cir. 2007):must treat as "conclusive" Commission's findings of fact so long as they are supported by substantial evidence on the record considered as a whole.

22 Proving Violations In order to prove a violation of a standard, OSHA must show that: the standard cited applies to the conditions; there was noncompliance with the standard; employees were exposed to or had access to the violative condition; and the employer knew or should have known of the violative condition. Sec must show all elements by a preponderance of evidence Must also prove that the selected characterization (e.g., serious, willful, repeat) is appropriate.

23 Proving Violations, cont. In some instances, if the standard does not specify a means of abatement, OSHA must also prove a feasible means exists to abate or reduce the hazard. Some types of Personal Protective Equipment Where no standard exists to address a serious hazard, OSHA may cite its general duty clause ( 5(a)(1) of the Act) if the hazard is recognized and there are feasible means of abatement.

24 Types of citations Citations Willful: $5,000-$70,000 Repeat: Up to $70,000 Serious: Up to $7,000 Other than serious: Up to $7,000 Failure to Abate/Correct: De minimis: Up to $70,000/day No penalty

25 Criminal Penalties Falsifying records Providing advance notice of inspection Willfully violating a standard that causes the death of an employee General criminal liability State plan states Non-state plan states Referral to DOJ

26 Employee Responsibilities Employees must obey standards, but may not be cited by OSHA for violations. Employees may not be discriminated against for exercising rights (Section 11(c)): complaining about safety and health hazards; filing safety and health grievances; or participating in inspections. Employees may be disciplined for failure to follow work rules.

27 Defenses Coverage Procedural Statute of Limitations 6 months Lack of reasonable promptness Substantive Employee misconduct Impossibility of compliance Greater hazard Lack of exposure/knowledge Existence of more specific standard

28 Common Violations General Duty Clause Process Safety Reporting/Recordkeeping Requirements Construction -- falls Manufacturing -- LOTO

29 General Duty Clause Employer must maintain conditions or adopt practices reasonably necessary and appropriate to protect workers on the job. Elements of a violation are 1. Existence of a condition that is a recognized hazard; industry or common knowledge employer s own knowledge 2. Condition is one that is causing or is likely to cause serious harm or death; and 3. Feasible means of abatement exist.

30 Process Safety Management et seq. Final rule issued in Establishes procedures for process safety management that are designed to prevent or minimize the releases of or accidents related to release of highly hazardous chemicals. Management systems HCI and HPI

31 Recordkeeping/Reporting Requirements Most employers with 11 or more employees Occupational illnesses must be recorded Occupational injuries must be recorded if they result in: death; one or more lost workdays; restricting work or motion; loss of consciousness; transfer to another job; or medical treatment (other than first aid).

32 Recordkeeping/Reporting Requirements, cont. 29 CFR (a). You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in (b)(2) specifically applies.

33 Recordkeeping/Reporting Requirements, cont. Three basic recordkeeping forms OSHA 300 (log) OSHA 300A (summary) OSHA 301 (supplementary) Incidents resulting in the death of an employee or hospitalization of 3 or more employees must be reported to the Area Office within 8 hours.

34 Common PSM citations Process Safety Information (PSI) Process Hazard Analysis (PHA) Mechanical Integrity (Inspection) Operating Procedures Training Management of Change (MOC) Contractors

35 Common Construction Citations Fall protection Scaffolding Aerial lifts Ladders Hazard communication Head protection Eye and face protection General safety and health provisions

36 Common Manufacturing Citations Lockout/tagout (LOTO) Hazard communication Machine guarding Respiratory protection Wiring methods and equipment Powered industrial trucks Electrical requirements Mechanical power-transmission apparatus

37 Thank You Greg Dillard, Vinson & Elkins, LLP

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