OSHA – Brief Overview

“WHAT IS OSHA?”

OSHA: FEDERAL AGENCY

Part of the Department of Labor (“DOL”)

Enforces Occupational Safety & Health Act of 1970 (29 U.S.C. § 650 et seq.

NEW ADMINISTRATION

Obama Administration intends to make OSHA

compliance a top enforcement priority

Current OSHA enforcement trends:

A. Increased budget for OSHA inspectors/programs

B. More aggressive penalties

C. National emphasis program on injury/illness recordkeeping

D. Pending legislation: Protecting America’s Workers Act of 2009

Protecting America’s Workers Act (pending)

1. Amends OSH Act

2. Increases protections for whistleblowers

3. Increases penalties for certain violations• $50,000 per violation – fatalities or serious injuries

• $250,000 max. penalty (increased from $70,000)

4. Felony sanctions for willful violations causing death or serious injury

Several states have

similar agencies which enforce

state safety laws, e.g. California

(“Cal OSHA”)

STATE OSH AGENCIES

OSHA issues rules, regulations,

safety standards and conducts

workplace safety inspections.

WHAT OSHA DOES

HEALTH AND SAFETY STANDARDS

Nearly all OSHA health and

safety standards are located

at 29 C.F.R. Parts 1910

(General Industry)

“General Duty Clause”

Section 5(a)(1) of OSH Act “catch-all” provision prohibits employers from exposing

employees to recognized hazards that can cause death or serious physical harm

OSH ACT CASE LAW

“Multi-employer Worksite Doctrine”

“WHO ARE THESE GUYS?”

OSHA:

OSHA: Sect’y of Labor Ass’t Sect’y of Labor Occ. Safety & Health Review Commission Regional Administrators Area Office Directors Compliance Safety & Health Officers Solicitor of Labor (OSHA’s attorney) Administrative Law Judges (“ALJs”)

(decide contested cases)

TYPES OF INSPECTIONS

“WHY ARE THEY HERE?”

Programmed Inspections

Targets “high hazard” industries

Site-Specific Targets (“SSTs”) (“high-incident” employers)

Enhanced Enforcement Program (employers who repeatedly ignore OSHA)

Non-Programmed Inspections Employee complaint Referral from another agency Report of death or serious injury “Drive-bys”: OSH detects imminent danger or condition

Other Targeting Programs Alliances (e.g., AESC alliance): industry-

wide standards Consultations: small business/on-site

compliance help SHARP: recognition program for small-

employers Strategic Partnerships: agreements to

prevent specific hazards VPP: Voluntary Protection Program

SCOPE OF INSPECTION

“WHAT ARE THEY LOOKING FOR?”

FIRE RESISTANT CLOTHING (FRC)

29 C.F.R. § 1910.132(a): PPE, including FRCs required when employee exposed to recognized fire hazard (usually welding, grinding, “hot work” in the presence of flammable or combustible liquids/gases)

FRC STANDARDS

See “Recommended Practices and Guidelines” for Oil and Gas Well Drilling, Servicing and Storage (www.osha.gov/SLTC/oilgaswelldrilling/drillingservicing.html)

Viewed as “industry standards” (not regulations)

Denim/cotton clothing recommended

WORK-SITE INSPECTIONS

WORK-SITE INSPECTIONS

Usually involves six steps:

1. Compliance officer announces presence

2. Opening conference

3. “Walk around” tour of site

4. Employee interviews

5. Officer reviews employer’s records

6. Closing conference

CITATIONS

“De Minimus” “Other Than Serious” “Serious” “Willful” “Failure To Abate” Hazard

POSTING

Citation must be posted near work-site at least 3 days or until violation abated whichever is later - $7,000 fine

INFORMAL CONFERENCE

“Last chance” to settle before litigation

Employer must request

Must be held before notice of contest deadline (within 15 working days)

INFORMAL SETTLEMENT AGREEMENT

Contains settlement terms reached at informal conference – request “no admission of liability” clause to prevent agreement from being used as an admission in subsequent litigation.

UNCONTESTED CITATIONS

Uncontested citation becomes final order Employer must abate the hazard cited Employer must pay penalty assessed

FOLLOW-UP INSPECTIONS

OSHA may check to verify violation has been corrected

CONTESTED CITATIONS

“Notice of Contest”: Within 15 business days

Solicitor of Labor will file complaint Case will be assigned to ALJ

SIMPLIFIED PROCEEDINGS

Lesser citations involved Penalties less than $20,000 Fatality not involved Small employer (less than 40 employees) Not willful or repeat citation

SETTLEMENT

ALJ will encourage settlements Settlement conference required Citations/penalties are negotiable Penalties: Up to $7,000/violation or 10x

amount for repeat/willful violations

TRIAL

Conducted by ALJ (non-jury) Similar to civil court trial procedures Employer defenses are case specific

COMMON DEFENSES

Statute of Limitations (6 months) Unpreventable employee misconduct “Greater hazard” (if comply with standard) Cited standard does not apply

RETALIATION/CRIMINAL CONSIDERATIONS

§11: Retaliation prohibited Criminal penalties may apply

CRIMINAL PENALTIES (§17 OSH ACT)

Willful violation resulting in employee’s death

Giving advance, unauthorized notice of OSHA inspections

Making false statements or false records Assaulting/killing OSHA investigator

conducting an inspection

RESOURCES“Where Can We Find Help?”

RESOURCES OSHA website: www.osha.gov DOL website: www.dol.gov American National Standards Institute: www.ansi.org National Safety Council: www.nsc.org Health and Safety regs.: 29 C.F.R. Part 1910 OSHA “E-Tool” for Oil and Gas Well-Drilling and

Servicing: www.osha.gov/SLTC/etools/oilandgas/generalsafety

CONCLUSION

New enforcement emphasis + new laws + stiffer penalties = Greater $$ Risk