Joseph J. WarnerAssistant Area Director

OSHA – Cleveland, Ohio

OSHA Enforcement Update

Ohio Association of Metal FinishersMay 19, 2015

Why Work Safely?

OSHA’s MissionAssure so far as possible safe and healthful working conditions for every working man and woman in the nation.

Federal OSHA

• OSHA Staff: 2,305• Workers: 130 million• Worksites: 8 million• Regional Offices: 10• Local Area Offices: 90

Federal OSHAOhio Offices

• OSHA Inspectors: 58• Workers: 5.0 million• Worksites: 287,865• Local Area Offices: 4

– Toledo– Columbus– Cleveland– Cincinnati

Who is covered by the OSH Act?

• Most private sector employees• Coverage is provided directly by federal

OSHA or through an OSHA-approved state program

• Does not cover the self-employed or immediate members of farm families that do not employ outside workers

Workplace Inspections

• Every establishment covered by the OSH Act is subject to inspection by OSHA compliance safety and health officers (CSHO's)

• Most inspections are conducted without advance notice

HOW DOES OSHA PICK THE COMPANIES TO BE

INSPECTED?

OSHA Inspections• Imminent Danger – any condition where there

is reasonable certainty a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures

• Catastrophes and Fatalities – death of one or more employees or the hospitalization of three or more employees [Report within 8 hours]

• Amputations/Loss of Eyes/Hospitalizations –[Report within 24 hours]

OSHA Inspections• Employee Complaints

– Formal: Complaint signed by a current employee - an inspection

– Non-Formal: Complaint with no signature, anonymous, public, former employee – no inspection (phone & fax)

• Referrals– Law Enforcement– Other Governmental Agencies– Media

www.OSHA.gov

OSHA Inspections

• Programmed Inspections

– National Emphasis Programs (NEP)

– Local Emphasis Programs (LEP)

– U-Tenn inspections (Construction)

OSHA Inspections

• Follow-ups– Fatalities and Catastrophes– Significant Cases– No abatement verification

OSHA INSPECTIONS• Inspection stages

– Inspector’s Credentials– Opening Conference– Walkaround– Closing Conference– Citations– Review Process– Abatement Verification– Can happen anytime including Saturdays

• “Safety & Health Take No Breaks!”

Inspector’s Credentials• Inspector displays credentials• Asks to meet an appropriate

employer representative – Be sure all employees know who is

in charge at the job site– CSHO usually will wait a

reasonable, but short amount of time. Depending on amount of time, reason for delay & type of inspection

– OSHA will get a warrant if necessary

Inspector’s Credentials (Cont.)

• Employers should always ask– There are individuals that will say

they are OSHA to get on the jobsite for various reasons (competitors, vendors, attorneys, etc.)

• Employer can call local OSHA office to verify– Cleveland Office 216-447-4194– Toledo Office 419-259-7542– Columbus Office 614-469-5582– Cincinnati Office 513-841-4132

Opening Conference• Inspector:

– Explains how worksite was selected– Explains scope of inspection – Provides copy of complaint (if applicable)

• You will not be told who filed the complaint• Employers cannot discriminate against an

employee for filing a complaint– Employees are protected from discrimination by

Section 11-C of the OSH Act

Opening Conference (Cont.)

• Inspector:– Asks for employer representative to

accompany them during the inspection• Important to have representation during

inspection (plan on who - in advance)• Answer questions, offer explanations, etc.

– Asks for an authorized employee representative (union) to accompany them during an inspection

The WalkaroundInspector: • Proceeds through the establishment to identify

safety and health hazards– A company representative should be

present– Cooperative and respectful – A second employee to abate minor

violation (possible quick fix penalty reductions, if appropriate)

• Determines route and duration of the inspection• Talks privately with employees

The Walkaround (cont.)Inspector: • Takes photos/videotapes

– Company Rep. should take pictures of same angle and other if apply

• Reviews records, programs– Be sure your records are in order. Last

minute is no time to put them in order– Be sure that programs are in written form

when required by an OSHA standard)• Conducts monitoring (if applicable)

The Closing Conference• All observed unsafe and unhealthful conditions are

discussed• Violations for which a citation and penalty may be issued

are indicated• Inspector will not indicate any specific penalty but informs

employer of appeal rights• Abatement times are discussed• Appeals processes are discussed• Separate closing conference if employee representative

does not participate• Good time to ask questions about the process if you have

any

Post Closing Conference

• Inspector reports findings• Area Director determines whether citations will be

issued and whether penalties will be proposed• Site employer representative should compile his

notes to create a report to be filed with management• During this time get field and Mgt. personnel

together, review all notes and documents and determine what steps need to be taken next

• Remove employees from hazards! Interim protection where necessary

Citations• Employer will receive citations and notices by

certified mail• Employer must post a copy of each citation at or

near the place the violation occurred for 3 days or until it is abated – whichever is longer

• Inform the employer and employees of the regulations and standards alleged to have been violated

• Inform the employer and employees of the proposed abatement date

• Appeals process is explained

Citations: Types of Violations

• Violations– other-than-serious– serious– willful– repeat– failure-to-abate

Other-Than-Serious

• Direct relationship to job safety and health but would not cause death or serious physical harm

• Penalty $0 to $7000• May be adjusted downward as much as

95% (size, good faith, and history)

Serious

• Substantial probability that death or serious physical harm could result

• Penalty $1500 to $7000• May be adjusted downward for size, good

faith, and history

Willful

• Employer intentionally and/or knowingly exposes employees to a hazardous condition– Employer is aware of the hazardous

condition– Employer knows it violates a standard or

obligation of the Act– Employer makes no reasonable effort to

eliminate the hazard

Willful• Penalty $5000 to $70,000• Criminal sanctions may be imposed if

resulting in the death of an employee– Penalty of $250,000 ($500,000

corporation)– or 6 months imprisonment– or both

– May be reduced for size only

Repeat

• Inspection reveals a substantially similar violation is found and the original citation has become a final order

• Penalties up to $70,000 for each violation

Failure-to-Abate

• Employer fails to correct a prior violation• Penalties up to $7000 per day beyond the

prescribed abatement date

Citations• Once an employer receives a citation notice, a copy

of each citation must be posted at or near the place the violation occurred for 3 days or until it is abated (which ever is longer), even if you contest the citation.

• If employer agrees to the citation and penalties– Correct the conditions by the date set– Notify the Area Director by Certified Mail of the

corrective action– Pay any penalties within 15 working days of receipt

of notice

Citations (Continued)• Informal Settlement Agreement

– Before filing a Notice of Intent to Contest– Request an Informal Conference with the

Area Director (contact the Area Office ASAP to schedule)

Citations (Continued)• Informal Settlement Agreement

– Often an Informal Settlement Agreement will be sent with the citation (Expedited Informal Settlement Agreement)

– Must be done within 15 working days of the citation

Citations (Continued)• If employer does NOT agree the employer has 15

working days from the date of receiving the citation to contest in writing the citation, proposed penalty and/or abatement date.– Penalties and/or abatement dates will be suspended

until Review Commission’s final order– Contest must be made in good faith– If only penalty or some items are contested the

remainder must be abated or paid by the date on the citation.

– Penalties and/or citations properly contested will not have to be abated or paid until resolved

Citations (Continued)– The Employer can try to settle with OSHA’s attorney– IF not, a hearing (trial) will be scheduled– You may represent yourself or have council– The judge can affirm, modify or eliminate any

contested items– Either party can request a review of the full

Occupational Safety & Health Review Commission• (Independent body from OSHA)

– The Commission’s ruling can be appealed to the U.S. Court of Appeals

Nationwide FY13 Top 10 Most Cited Standards

1. 1926.501 thru 503 Fall Protection2. 1910.1200 Hazard Communication3. 19926.451 thru .454 Scaffolding4. 1910.134 Respiratory Protection5. 1910.305 Electrical, Wiring Methods6. 1910.25 thru .27 Ladders

7. 1910.178 Powered Industrial Trucks

8. 1910.147 Lockout/Tag out

9. 1910.303 Electrical General requirements

10.1910.212 Machine GuardingDa Source: OIS Frequently Cited Stnds. Rpt. Dated 9/17/13

1. 1910.134 Respiratory Protection2. 1910.1200 Hazard Communication3. 1910.1026 Chromium VI4. 1910.305 Wiring methods, components, equipment

for general use5. 1910.132 Personal Protective Equipment6. 1910.303 Electrical (General)7. 1910.23(b) Guarding floor & wall openings and

holes8. 1910.147 Lockout/tag out9. 1910.151 Medical Services & First Aid10. 1910.178 Powered Industrial Trucks 37

NAICS Code: 332813 Electroplating, Plating, Polishing, Anodizing, and Coloring

Cont.11. 1926.62 Lead (construction)12. 1910.212 General Requirements for all machines13. 1910.217 Mechanical power transmission apparatus14. 1910.22 & 23(c thru e) Housekeeping/aisles/covers/guardrails/floor openings15. 1910.157 Portable fire extinguishers16. 1910.179 Overhead and gantry cranes17. 1910.124 Dipping & Coating Operations (General)18. 1910.133 Eye & Face Protection19. 1910.1000/1026 Air Contaminants20. 1910.146 Permit Required Confined Spaces

38

Can we beat an OSHA citation?

• Employee Misconduct• Must prove all four of these:

– Work rule clearly established– Rule is clearly communicated to employees– Monitor compliance (evidence of such

extremely helpful)– Discipline issued when required

39

Joe’s Tips For Employers • Have a plan to inform top managers of OSHA’s

arrival and results of the inspection• Be respectful• Don’t impede Compliance Officer• Take notes and photos• Ask Compliance Officer questions to help you

understand hazards and corrective actions• Provide documents as soon as possible • Make sure you understand what is being

requested • Fix It Fast !!!!!!

Targeting High Risk Hazards

Workplace Fatality Data

0

2.75

5.5

93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12*

5.2 5.34.9 4.8 4.8

4.5 4.5 4.3 4.34 4 4.1 4 4.2 4

3.7 3.5 3.6 3.53.2

Fatal Work Injuries per 100,000 Workers42

Fatality RATES are down 35% since

1994

Rate of Fatal Work Injuries Continues to Drop1993-2012

Source: Bureau of Labor Statistics (*2012 data)

804

666

895823 848

0

100

200

300

400

500

600

700

800

900

1000

FY 10 FY 11 FY 12 FY 13 FY 14

FY 2010 ‐ FY 2014 Nationwide Fatalities

Region V Fatality Study DataFY2010 – FY2014

45

6

15

8

12

1011

5

12

9

21

10

8

18

13

9

7

11

1413

8

0

5

10

15

20

25

Cincinnati Cleveland Columbus Toledo

Fatalities Ohio Area Offices FY 2010 ‐ FY 2014

FY10 FY11 FY12 FY13 FY14

166, 29%

156, 27%

254, 44%

Region V Fatalities by Industry FY 2010 ‐ FY 2014

Construction

Manufacturing

Other

186

145 145

3227

2318

0

20

40

60

80

100

120

140

160

180

200

Struck Fall Caught Electrocution Exposure Other Fire/Explosion

Region V Fatalities by Event FY 2010 ‐ FY 2014

The “Big 3”  Falls, Caught‐In, Struck‐By

• The “Big 3” comprises 80% of all fatalities in Region V.

Region V Fatality Trends -Caught In Equipment

• Lack of Machine Guarding

• No Lockout/Tagout Procedures

Evidence of Imminent Cave-in

View of trench after inspection(More cave-ins of sides,

including where employee was working)

Region V Fatality Trends – Falls

0 5 10 15 20 25

Fall from ladder

Fall from roof

Fall from same level

Fall from elevation, NEC

Fall from elevated lift or platform

Fall from nonmoving vehicle

25

19

18

16

14

9

Region V Fall Fatalities FY 2010 ‐ FY 2014

Fall from Ladders

Electronics Recycling Facility

Temporary Worker InitiativeToo many fatalities reported are found to be temporary workers.

OSHA Memorandum to Regional Administrators:

CSHOs will assess whether employers who use temporary workers are complying with their responsibilities under the OSH Act

CSHOs will code the information in their records to denote when temporary workers are exposed to safety and health violations

CSHOs will assess whether temporary workers received required training in a language and vocabulary they could understand

Targeting High Risk Hazards

OSHA Citation Data

62

National Emphasis ProgramsCurrent:• Amputations• Combustible Dust• Fed Agencies• Food Flavorings• Hex Chrome • Lead• Primary Metals• PSM (Chem Plants)

• Nursing Homes & Residential Care Facilities

• Silica• Ship Breaking• Trenching• Isocyanates

63

Region V Local Emphasis Programs (LEPs) - FY 14

• Fall Hazards (Construction & General Industry)• Primary Metals • Grain Handling Facilities• Tree Trimming Operations• Powered Industrial Vehicles (Construction & GI)• Maritime (IN, MI)• Building Renovation/Rehab - “Gut Rehab”• High Rise Construction (Chicago AOs)• Dairy Farm LEP (Wisconsin AOs)• Federal Agencies (IN, MI, MN)

64

33,000

34,000

35,000

36,000

37,000

38,000

39,000

40,000

41,000

FY10 FY11 FY12 FY13 FY14

40,99340,448

40,976

39,124

36,054

Inspections Conducted (Federal) FY 2010 - FY 2014

• 6,349 total inspections– 2,959 of which were construction– 1,441 were health inspections

• Ohio inspection in FY 2014– 2,251 total inspections– 1,067 were construction– 501 were health inspections

65

Region V FY-2014 Inspection Data

660%

10%

20%

30%

40%

50%

60%

FY10 FY11 FY12 FY13 FY 14

60%56%

50%48% 47%

Region V - % Construction Inspections FY 2010 - FY 2014

67

0%

10%

20%

30%

40%

50%

60%

FY10 FY11 FY12 FY13 FY14

60% 58%

49% 49%44%

40%42%

51% 51%56%

% Programmed vs % Unprogrammed FY 2010 - FY 2014

Programmed Unprogrammed

68

$0

$500

$1,000

$1,500

$2,000

$2,500

$3,000

$3,500

FY10 FY11 FY12 FY13 FY14

$1,053

$2,203

$3,106$2,837 $2,926

FY 2010 - FY 2014 Nationwide Average Initial Penalty Per Serious

Violation

The rule expands the list of severe work‐related injuries and illnesses that all covered employersmust report to OSHA.

Starting January 1, employers must report the following to OSHA:• All  work‐related fatalities within 8 hours (same as current requirement)• All  work‐related in‐patient hospitalizations of one or more employees 

within 24 hours• All work‐related amputations within 24 hours• All  work‐related losses of an eye within 24 hours

www.osha.gov

Updates to OSHA’s Recordkeeping and Reporting Rule

70

Questions?