osha practice - construction safety professionals · osha 2011: an overview con’t old osha new...

OSHA Practice

www.morganlewis.com

Presenters:

Dennis Morikawa

Jonathan Snare

Jim Stanley

November 1, 2011 OSHA Update 2011:

World Class Safety & the New OSHA

http://www.facebook.com/photo.php?pid=2556545&id=151761824794

© Morgan, Lewis & Bockius LLP 7 7 7

Overview

• Recent Updates From OSHA:

– The ―New‖ OSHA

– 2012 Budget

• OSHA Enforcement Overview

• Key OSHA Enforcement Initiatives and Recent Legal Developments

with Continuing Impact in FY 2012

– Record Keeping; General Duty Clause

– SVEP; Penalty Enhancement; Solicitor's Office Activities

– Multi-Employer Policy Developments


Overview cont’d

• What to Expect in FY 2012 and Beyond

– 2011/2012 Regulation Agenda

– Cranes and Derricks

– Recording and Reporting Proposed Regulations

– Walking/Working Surfaces

– Hazard Communication Final Rules

– I2P2

• Practical Solutions to Mitigate Risk

• Questions and Answers

© Morgan, Lewis & Bockius LLP

The “New” OSHA: An Overview

9

© Morgan, Lewis & Bockius LLP 10 10

Old OSHA New OSHA

Stable budgets. Increased funding for CSHOs and attorneys in

the Solicitor’s Office.

Focus on corporatewide issues and

worst offenders.

Significantly increased attention to worst

offenders and corporatewide issues.

Focus on nonregulatory methods to

improve worker safety such as

guidance documents, SHIBs, etc.

Standard setting is a top priority, including

numerous health standards and other

controversial areas such as safety and health

programs.

Scale back on recordkeeping

requirements.

Enhance recordkeeping and use enforcement

tools to ensure accuracy of data.

Predictable penalties. Higher penalties across the board; greater

emphasis on criminal prosecutions.

OSHA 2011: An Overview


OSHA 2011: An Overview Con’t

Old OSHA New OSHA

Reported injuries at a record low

because of OSHA’s efforts.

Reported injuries at a record low because of

widespread under-reporting.

Expanded on compliance assistance

and cooperative programs to bring

down fatality, injury, and illness rates.

Cooperative programs curtailed in favor of more

resources focused on enforcement and citation

programs.

Limited use of General Duty Clause

citations for ergonomics, workplace

violence.

Increased use of General Duty Clause for

ergonomics, workplace violence, and numerous

other areas.

Willingness to settle cases with citations

―unclassified.‖

Limited use of ―unclassified‖ citations as a

settlement tool.

Enhanced Enforcement Program (EEP). Severe Violators Enforcement Program (SVEP).


The New OSHA in FY2012

• OSHA has been active in trying to implement policy priorities through the following non-legislative strategies:

– Regulation

– Interpretations of existing OSHA standards (example: proposed reinterpretation of OSHA noise standard for general industry and construction)

– Letters of interpretation

– Enforcement policy

– Guidance documents such as SHIBs, etc.

• As of November 2011, OSHA has been restrained somewhat in issuing new policy initiatives, due to a number of factors including increased congressional oversight and White House pressure.

• These constraints on OSHA will continue in 2012 presidential election cycle.

• Continued oversight from Congress (House Committee on Education and Workforce).

12

© Morgan, Lewis & Bockius LLP 13

• Obama Administration new Executive Order issued on January 18, 2011

directing federal agencies to review regulations that could be "redundant,

inconsistent, or overlapping" and to determine whether any regulations

should be "modified, streamlined, expanded, or repealed" to ensure that

federal agencies' regulations are "more effective or less burdensome in

achieving the regulatory objectives―

• On January 19, 2011, OSHA withdrew its proposed (published on October

19, 2010) sweeping reinterpretation of the occupational noise standard due

to concerns of costs and burdens on employers.

• On January 25, 2011, OSHA withdrew "temporarily" its proposed rule to add

the MSD column back into the OSHA 300 log to allow the agency the

opportunity to seek input from small businesses.

The New OSHA in FY2012


OSHA 2012 Budget

14


OSHA 2012: Budget

• In FY 2012, OSHA is requesting $583,386,000 and 2,387 FTE, an increase of $24,766,000 and 72 FTE above the FY 2010 enacted level

• The FY 2012 request includes program increases for:

– Safety and Health Standards, $6,400,000

– Federal Enforcement, $7,714,000 and 25 FTE

– Whistleblower, $5,988,000 and 45 FTE

– State Programs, $1,500,000

– Compliance Assistance Federal, $650,000 and 2 FTE

– Compliance Assistance State Consultation, $1,000,000

– Training Grants, $1,250,000

• Very unlikely that these amounts will be approved by Congress

• Conflict with House of Representatives—House adopted a Continuing Resolution on February 11, 2011 cutting OSHA’s budget for FY 2001 by $99,000,000


OSHA Enforcement Overview

16


FY 2011

Top 10 Most Cited Standards

(Construction Industry)

1. Scaffolding

2. Fall Protection

3. Ladders

4. Fall Protection, Training

Requirements

5. Hazard Communication

6. General Safety & Health Provisions

7. Head Protection

8. Aerial Lifts

9. Eye & Face Protection

10. Specific Excavation Requirements


FY 2011

Top 10 Most Cited Standards

(General Industry)

1. Hazard Communication

2. Respiratory Protection

3. Lockout/Tagout

4. Powered Industrial Trucks

5. Electrical, Wiring Methods

6. Electrical, General Requirements

7. Machine Guarding

8. Recordkeeping

9. Personal Protective Equipment

10. Guarding Floor & Wall Openings & Holes

18


FY 2007 – FY 2011

% Programmed vs. % Unprogrammed

59%

41%

60%

40%

62%

38%

60%

40%

58%

42%

0%

20%

40%

60%

80%

100%

FY07 FY08 FY09 FY10 FY11

Programmed Unprogrammed

19


FY 2007 – FY 2011

% Complaint Inspections

18% 17% 17%20%

21%

0%

20%

40%

60%

80%

100%


20


FY 2007 – FY 2011

% Inspections With Violations Contested

7% 7% 7% 8% 10%

0%

20%

40%

60%

80%

100%


21


FY 2007 – FY 2011

Average Penalty Per Serious Violation

$918$998 $970 $1,053

$2,005

$0

$500

$1,000

$1,500

$2,000

$2,500


22


FY 2007 – FY 2011

% Construction Inspections

59% 60% 61% 60% 58%

0%

20%

40%

60%

80%

100%


23


FY 2007 – FY 2011

Significant Cases

107

121 120

164

62

0

50

100

150

200


24


FY 2007 – FY 2011

Egregious Cases

35

4

20

7

0

5

10

15

20

25

30


25


FY 2007 – FY 2011

Fatality Investigations

1,043

936

797 804

257

0

250

500

750

1,000

1,250


26


Key OSHA Enforcement Initiatives and Recent Legal Developments with Continuing Impact

in FY 2012

27


Citation and Enforcement Policy:

Rise of National Emphasis Programs

• National Emphasis Programs in FY 2011

– Lead

– Silica

– Amputations

– Record keeping

– Diacetyl and substitutes

– Oil refineries

– Chemical plants

– Combustible dust

– Hexavalentchromium

– Primary Metals Industries (issued in June 2011)

• National Emphasis Programs Under Development

– Oil refineries/chemical plants

– Metals

– Isocyanates

– Nursing homes/health care


Citation and Enforcement: Local Emphasis Programs

• Local Emphasis Programs (LEPs) are enforcement strategies designed and implemented at the regional office and/or area office levels.

• The emphasis programs may be implemented by a single area office, or at the regional level (Regional Emphasis Programs), and applied to all of the area offices within the region.

Examples:

– Fabricated Metal Products

– Fall Hazards in Construction

– Mobile Crane Operations in Construction

– Follow-up Inspections

– Never-Before-Inspected High-Hazard Manufacturing

– Noise Exposure

– Powered Industrial Trucks

– Fire Safety

– Commercial and Residential Construction

– Bridge Construction and Maintenance

– Roadwork


Citation and Enforcement: Recordkeeping Enforcement

• OSHA launched its recordkeeping NEP on October 1, 2009 based on a belief that employers were underreporting injuries and illnesses. Under this NEP, OSHA proposed that it would:

– Send inspectors to industries believed to be under-recording workplace injuries and illnesses.

– Ascertain whether recent studies, which have detected underrecording on OSHA 300 logs, are accurate and to correct any underrecorded or incorrectly recorded cases.

– For sites with 100 or fewer employees, review 100% of the injury and illness records for 2007 and 2008.

• The industries subject to this initial NEP include steel foundries, air transportation, concrete pipe manufacturing, rolling mill machinery, and equipment manufacturing.


Citation and Enforcement Recordkeeping Enforcement

• OSHA announced on August 11, 2010 that the agency had ―temporarily‖ halted this NEP to readjust the targeting criteria.

– According to BNA, an industry source stated that OSHA did not find the large number of underreporting of cases it expected; plus these recordkeeping inspections are very resource intensive.

– OSHA stated that as of August 11, 2010 there were 76 closed inspections under this NEP; the agency found violations of recordkeeping requirements in 29 of these inspections. (The agency also found violations of other OSHA standards in 43 of these inspections.)

– OSHA stated ―there is some underreporting,‖ but admitted this program is not the best use of OSHA’s resources.

• OSHA relaunched this Recordkeeping NEP in October 2010: OSHA issued a revised directive to focus on manufacturing, larger worksites and other employers with higher injury rates than the initial targets.

– Dr. Michaels: OSHA is committed to ensure that employers will abide by OSHA recordkeeping requirements, and that"injury and illness data reported by employers are accurate and not influenced by improper incentive or disincentive programs."

31



• Secretary of Labor v. AKM LLC d/b/a Volks Constructors, OSHRC Docket No. 06-1990 (March 11, 2011)

– OSHA issued 5 citations for violations of certain recordkeeping requirements at its facility located in Prairieville, Louisiana.

– Employer contested the citations, arguing the recordkeeping violations were time-barred by the six-month limitations period in section 9(c) of the OSH Act, 29 U.S.C. § 658(c).

• Section 9(c) of the OSH Act, 29 U.S.C. § 658(c), provides: ―[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.‖

– OSHA argued that the citations were timely because the violations continued during the five-year retention period prescribed by the recordkeeping regulations.

• Holding: Citations upheld, explaining ―…the timeliness of the citation at issue here is predicated solely on the continued existence of the violations throughout the five-year retention period, which means that OSHA did, in fact, issue the citation within six months of the occurrence of the recordkeeping violations….‖

• Significance: OSHA has rarely if ever cited an employer for recordkeeping issues beyond 6 months. Now employers may be liable for recordkeeping problems going back 5 years.

32


• Implications (AKM LLC / Volks Constructors decision)

– Challenges of proving or disputing the existence of old

record keeping violations

– Implications of a five year statute of limitations

– Potential disincentive to correct discrepancies

– Would this require employers to retroactively comply with

record keeping requirements not in place at the time of the

alleged violation?

33




• In one enforcement action under this NEP, OSHA issued a citation against Goodman Manufacturing of Houston (air conditioning and heating equipment manufacturer) with $1.2 million in penalties for 83 willful violations. OSHA alleged that Goodman failed to record or failed to properly record 72% of the employee injuries/illnesses in the OSHA 300 logs for the period beginning in January 2008 and continuing through March 2010. OSHA Assistant Secretary Michaels stated in the agency press release on September 1, 2010:

"OSHA takes these violations extremely seriously. OSHA needs accurate data to effectively target its inspections and resources, and to measure the impact of OSHA's actions on workplace safety. Employers and workers need to understand how important accurate data are to workplace safety and health."

34


• OSHA settled the citation against

Goodman on September 30, 2011

– This case was initiated by whistleblower

complaint; Goodman paid complainant

$150,000 to settle the whistleblower case

after Solicitor’s office initiated lawsuit in

federal court

– Goodman also settled the contested citation

for $550,000 in penalties and further

agreed: (1) audit of all of its facilities

nationwide and provide OSHA with copy of

the audit report; (2) provide OSHA with 300

logs of the initial inspected facility for a year

on a quarterly basis

35




• On February 22, 2011, OSHA cited Superior Energy Services, Inc., (a holding

company) and several subsidiary companies with 38 alleged violations of the

Recordkeeping Standard. (32 of which were willful violations). Total penalty:

$337,500.

– OSHA Area Director: "OSHA's standards for accurate workplace injury

and illness records must be followed to protect workers' health and

safety. These records are needed to prevent future hazards."

– OSHA’s press release on the citation: ―The responsibility to ensure

proper recordkeeping is shared by the subsidiaries and the parent

corporation.‖

36



• OSHA issued citation on October 5, 2010 against the AK Steel Corporation facility in Middleton, Ohio for recordkeeping violations (5 willful and 3 other than serious) with total penalty of $53,000.

• Willful violations for failure to properly record occupational injuries on OSHA 300 logs for more than 3 years (January 2007 through April 2010, the start of the inspection.)

• OSHA criticized AK Steels' use of safety incentive programs:

– OSHA Assistant Secretary Dr. Michaels: "AK Steel has implemented policies where a portion of its managers' bonus money often involves taking disciplinary action against workers for reporting injuries. If accurate records are not compiled because workers believe they will be fired or disciplined for reporting an injury, or supervisors fear they will lose their bonuses if workers report injuries, real safety is not being achieved."

– OSHA Area Director for Cincinnati, Ohio: "By not properly recording injuries and creating an environment that discourages employees from reporting occupational hazards, AK Steel has demonstrated a blatant disregard for the safety and welfare of its workers."


Citation and Enforcement: Recordkeeping/Pitfalls if you use

Safety Incentive Programs

• Traditional Safety Incentive Programs vs. Nontraditional Safety Incentive Programs

– Traditional Safety Incentive Programs: Programs that tie performance review/salary or award bonuses based upon achieving goals of reducing workplace injuries (such as based on OSHA recordables or some other statistical measure) (lagging indicators)

– Nontraditional Safety Incentive Programs: Programs that focus on employee behavior and reward employees for demonstrating safety work practices (such as wearing PPE), participating on safety committee, participating with or leading safety training, etc. Programs that essentially focus on positive behavior (leading indicators)

• OSHA Assistant Secretary Dr. Michaels has been critical of traditional safety incentive programs: "We strongly disapprove of. . . programs that award managers large bonuses for driving down their injury rates."


Citation and Enforcement: General Duty Clause Enforcement

• Section 5(a)(1) of the OSH Act states: ―Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.‖

– Currently used to cite employers for ergonomic injuries, combustible dust, and other OSHA-identified hazards for which the agency currently has no standards.

– Citation issued in 2009 to retailer for Black Friday stampede that killed worker.

– H1N1 Influenza Enforcement Procedure

• Dr. Michaels has made clear his preference to expand the use of the General Duty Clause:

– ―OSHA has abandoned the General Duty Clause. It is time for the agency to start using it again.‖ - Dr. Michaels, 2007

– ―OSHA doesn’t need a new standard if a hazard is serious and there are recognized measures to mitigate the hazard.‖ - Dr. Michaels, 2007

– "The General Duty Clause serves an important purpose because it is impossible for OSHA to create a standard for every hazard, as in the cases of ergonomics, workplace violence, specific chemical or bacterial exposure, or structural strength.― - Dr. Michaels at the September 2010 OSHRC Judicial Conference


Citation and Enforcement General Duty Clause Enforcement

• Debate over OSHA's new approach in using the General Duty Clause

• Is OSHA using the General Duty Clause for actual "recognized" hazards or is the agency engaging in after the fact review of one time accidents or unpredictable incidents?

• OSHA's letters to put employers on notice of particular hazards/potential hazards:

– letter to grain industry on August 4, 2010 regarding hazards with grain elevator engulfments

– letter to utility industry/other employers on August 27, 2010 regarding hazards with gas blows

– letter to retail CEOs on November 3, 2010 regarding hazards with crowds at major sales events

• Consistent with Congressional intent?

– Debate during the passage of the OSH Act on the General Duty Clause including its meaning, scope and use (prior draft of "readily apparent hazards" was replaced with "recognized hazards" to eliminate some concern)

– Senate Report 91-1282: "The General Duty Clause . . . would not be a general substitute for reliance on standards. General Duty Clause "merely" requires employers "to correct recognized hazards after they have been discovered on inspection and made the subject of an abatement order"; not to provide the basis for a penalty unless the "employer refuses to correct the unsafe condition after it has been called to his attention."


Citation and Enforcement: Ergonomics

• Ergonomic injuries refer collectively to a group of injuries and illnesses that affect the musculoskeletal system; there is no single diagnosis.

– In 2001, Congress passed, and the President signed, Senate Joint Resolution 6, which rescinded an original ergonomics rule and, under the Congressional Review Act, prohibits OSHA from issuing a rule that is substantially the same as the former one.

– OSHA developed voluntary guidelines and will cite for ergonomic hazards under the General Duty Clause or issue ergonomic hazard letters where appropriate as part of its overall enforcement program.

• OSHA head Dr. Michaels has stated that ―work-related musculoskeletal disorders are by far the leading cause of workplace injuries,‖ and that the Bush Administration’s approach to ergonomics, including voluntary guidelines, failed to address this problem.

– Dr. Michaels announced on April 7, 2010 that OSHA will increase enforcement of ergonomics using the General Duty Clause.

– Dr. Michaels stated that ―OSHA must do more‖ to address ergonomics hazards and ―OSHA’s field staff will be looking for ergonomic hazards in their inspections.‖

– Deputy Assistant Secretary Barab stated that OSHA is working on efforts to make the agency’s use of the General Duty Clause ―more effective.‖

• Significant because this may apply very broadly to large group of employers, and because the diagnosis of injury/illness itself is subject to substantial discretion.


Citation and Enforcement: Ergonomics

• OSHA published a proposed rule on January 29, 2010 to restore a column on the

OSHA 300 log that employers must fill out when recording ergonomic injuries

musculoskeletal disorders (MSDs).

– The MSD data from the column will help track injuries at individual workplaces

and improve the nation's occupational injury and illness information data

published by the Bureau of Labor Statistics.

• Reporting may lead to ―back-door rule-making‖ on ergonomics.

• Reporting will force employers to consider abatement and other preventive measures

if data shows a problem.

• OSHA held a public hearing on this proposed rule on March 9, 2010.

• OSHA’s goal was to publish the final Rule in October 2010; however, this Rule was

held up by OMB during its review process. OSHA subsequently announced on

January 25, 2011 that it was ―temporarily‖ withdrawing this rule; further action

uncertain. OSHA has taken steps thereafter at OMB’s direction to seek more

stakeholder input and move forward on the regulation, but this rule is still on hold.


Citation and Enforcement: Repeat Violations

• Currently, to establish a repeat violation under section 17(a) of the OSH Act, OSHA must prove that:

– The cited employer is the same one that was cited previously;

– The previously cited employer was cited at least once before (and within three years of the time that the previous violation became a final order);

– The earlier citation became a final order of the Occupational Safety and Health Review Commission; and

– The earlier citation was for a substantially similar violation.

• Repeat citations are very costly to employers—up to five times the penalty of the first-offense citation.

– Three repeat citations (or Three Willful and repeat violations in combination) will place the employer in the Severe Violators Enforcement Program (SVEP).

• Anticipate a broadening of OSHA’s willingness and ability to cite repeat violations:

– Broadening the scope of what is defined as a ―repeat‖ offense under section 17(a).

– Citations for a single employer across multiple facilities may support ―repeat‖ finding.


Citation and Enforcement: Repeat Violations

• OSHA is expanding repeat citation enforcement with respect to performance standards such as Process Safety Management Standards.

– Many PSM citations have been ―repeats‖ based on various PSM performance standards.

– But compliance varies widely for some PSM performance standards, so query whether ―substantially similar‖ requirements can be met in these circumstances.

• Defending repeat citations:

– Don’t forget substantive defenses to the underlying cited violation.

– Evaluate whether the prior violation could have given notice for the circumstances in the repeat citation.

– Consider rewriting the violation to reduce its use as a repeat predicate going forward.


Citation and Enforcement: SVEP Program

• OSHA’s Enhanced Enforcement Program (EEP) was created to focus

resources on ―those employers who are indifferent to their obligations under

the OSH Act.‖

– But in April 2009 congressional hearings, OSHA agreed that the EEP

was not working as intended and needed to be improved to target ―truly

bad actors,‖ such as those with willful or repeat violations and/or those

linked to workplace fatalities.

• Severe Violators Enforcement Program (SVEP) designed by an OSHA Task

Force to replace the EEP.

• OSHA finalized the SVEP directive on April 22, 2010 and it went into effect

on June 18, 2010. The latest version of the OSHA Field Operations Manual

(FOM) released on April 22, 2011 includes the SVEP procedures.


Citation and Enforcement: SVEP Program

• OSHA will consider any inspection that meets one or more of the following criteria as a candidate for the SVEP:

– Fatality/Catastrophic Criteria. A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated citations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations. Violations under this section do not need to be classified as ―High Emphasis Hazards.‖

– Nonfatality/Noncatastrophic High Emphasis Hazards. An inspection that finds two or more willful or repeated violations or failure to abate notices based on high-gravity, serious violations due to a High Emphasis Hazard.

– A ―High Emphasis Hazard‖ is one based on a fall or a specific NEP identified in the draft, and thus includes (1) fall hazards under general industry, construction, shipyard, marine terminal, and longshoring standards; (2) amputation hazards; (3) combustible dust hazards; (4) crystalline silica hazards; (5) lead hazards (based on sampling); (6) excavation and trenching hazards; and (7) ship-breaking hazards.

– Nonfatality/NonCatastrophic Hazards Due to the Potential Release of a Highly Hazardous Chemical –PSM. An inspection that finds three or more willful or repeated violations or failure to abate notices based on high-gravity, serious violations related to petroleum refinery hazards, i.e., hazards covered by the petroleum refinery PSM NEP and hazards associated with the potential release of highly hazardous chemicals, as defined by the PSM Covered Chemical Facilities NEP.

– Egregious Violations. All ―egregious‖ enforcement actions (cases where OSHA has alleged instance-by-instance violation of a particular standard) will be considered SVEP cases.


Citation and Enforcement: Consequences of Placement into SVEP Program

• Enhanced, Broad Follow-up Inspections

– Follow-up inspections of the cited workplace will be conducted after the citation becomes a final order, even if abatement verification has been received.

– In other words, these follow-up inspections are not limited in scope to whether the identified hazard has been abated, but will also include an assessment of whether the employer is engaging in similar violations.

– For Construction Industry worksites that close before a follow-up investigation can be conducted, at least one of the employer’s other worksites will be inspected.



• Nationwide Inspections

– Where the agency has reason to believe that a citation is part of a broader pattern of noncompliance, OSHA will conduct inspections at related worksites of that employer. This means, for example, that a Pennsylvania facility that is cited for a particular violation can trigger an investigation of a Texas-based worksite of that same employer.

– According to the SVEP, the scope of the related inspection ―will depend upon the evidence gathered in the original SVEP inspection.‖

– Specifically, OSHA will be looking for evidence of broader noncompliance patterns in its initial investigations—and may issue document requests or subpoenas to gather evidence to determine whether related investigations are warranted.

– OSHA also will identify potential locations to state plan states, and will accept referrals from state plan states.



• When the regional administrator determines that related worksite inspections for the employer should be conducted, the following rules apply:

– For General Industry worksites with three or fewer similar or related worksites nationwide—all worksites will be investigated.

– For General Industry worksites with four or more similar or related worksites nationwide—the Director of the Directorate of Enforcement Programs (DEP) shall issue an SVEP nationwide inspection list with respect to the employer. Normally, where there are 10 or fewer similar or related worksites, all will be inspected. When there are more than 10 such establishments, random numbers will be assigned to the worksites on the list and the first 10 will be inspected. The Director of DEP has discretion to select particular establishments for inspection and to conduct further investigations as deemed necessary.

– For nationwide inspections that involve PSM hazards, inspections will be limited to the willful or repeated citations or failure to abate notices that were issued and will not include worksites that were inspected during the previous two years.

– For Construction Industry worksites that operate in different regions, where deemed necessary, the Director of DEP will issue an SVEP nationwide referral. The procedures outlined above with respect to General Industry worksites will apply.



• Enhanced Settlement Provisions. OSHA will press SVEP participants to accept the following in settlement negotiations:

– hiring an independent safety consultant to work through compliance issues;

– applying settlement agreements companywide in accordance with OSHA’s 1991 Guidelines for Administration of Corporate-Wide Settlement Agreements;

– imposing interim abatement controls where full abatement may take time;

– imposing weekly or other enhanced reporting measures to report current or future jobsites for a certain time period;

– requiring employers to report work-related injuries and illnesses on a quarterly basis and consent to inspections based on that data; and

– requiring employers to report for a specified time period any serious injury or illness requiring medical attention, and to consent to inspections based on that data.



• Increased Awareness of OSHA Enforcement.

– The agency will pursue higher-profile enforcement, ensuring, for example, that company headquarters are notified of site-specific issues. OSHA will also issue press releases upon the issuance of citations.

• Enforcement Under Section 11(b).

– OSHA will strongly consider SVEP cases for federal court enforcement orders under Section 11(b) of the OSH Act.


Results of SVEP Thus Far

• OSHA Deputy Assistant Secretary R. Fairfax stated on March 16, 2011 that the SVEP Program is successfully targeting the right employers

• As of mid-March 2011, 118 OSHA cases have been placed in SVEP (74 from construction industry)

• Of these 118 cases, 20 involved worker fatalities; 79 involved high-emphasis hazards; and 4 involved highly hazardous chemicals. Additionally, 17 of the employers placed in SVEP were cited under the egregious policy

• OSHA is planning on implementing technological changes to improve the SVEP effort. For example, OSHA is planning on using an improved automated system to manage program data and track this overall enforcement effort. OSHA will also create a website to list employers who have been placed in SVEP and to gather information to determine whether nationwide inspections of related workplaces are warranted.


Citation and Enforcement: SVEP Program—Unanswered Questions

• Unanswered Questions and Implications

– It is not clear how an employer will be removed from the program.

• Will an employer be released from the SVEP if OSHA conducts a follow-up inspection of the originally cited worksite and does not find any similar level of violations? Or is there something more an employer would need to do, such as comply with some or all of the enhanced settlement provisions described above?

– It is not clear whether OSHA will face challenges from employers for probable cause if the agency attempts to conduct inspections of other worksites based upon a citation satisfying one of the criteria set forth in the directive, even though the citation is not yet a final order of the OSHRC.

• Under well-developed caselaw, OSHA is required to target its enforcement based upon neutral criteria, and the SVEP’s targeting system, currently based upon unadjudicated citations, potentially creates a number of constitutional and legal issues for the agency.

– It is not clear how the contest rate of OSHA citations will be impacted if the agency closes the door to potential settlements of willful violations and other citations using the Section 17 ―unclassified‖ approach.


Corporate-Wide Settlement Policy

• Revised Guidelines Issued June 2011 – Replaces OSHA Instruction CPL 02-00-090

• All industries impacted

– Either Employer or OSHA may initiate Corporate Settlement Agreements if evidence of ―significant‖ pattern of non-compliance across locations

– OSHA may consider ―going beyond the subject of the citations to include additional safety and health program enhancements‖

– May implement National or Regional CSAs


CSAsCon’t

• OSHA considers CSA particularly appropriate in:

– High Profile Enforcement Cases

– Extensive Recordkeeping Deficiency Cases

– High Gravity Serious Citations Cases

• National CSAs must appoint Coordinator to monitor compliance – Waiver of inspection warrant to be explicitly recognized.

• CSAs will not apply in State Plan states, but State must be made aware of CSA. Employer may contact state to determine whether state will honor terms of CSA or require modification.

• Must include sunset/termination clause whereby terms of CSA no longer recognized by OSHA – no more than two years.


Citation and Enforcement: Penalty Enhancement

• On April 22, 2010, OSHA announced it would revise OSHA penalties as calculated in the agency's Field Operations Manual (FOM).

• Dr. Michaels signed the memorandum titled "Administrative Enhancements to OSHA's Penalty Policies― to OSHA Regional Administrators. In the memorandum, Dr. Michaels stated that OSHA's "penalties are too low to have an adequate deterrent effect."

• The changes include:

– Lengthening the time frame for considering an employer's history of serious, willful, repeat, or failure to abate violations from three to five years.

– Lowering the reduction levels provided to employers based on size, e.g., no size reduction will be allowed for employers with more than 251 workers, according to the memo.

– Any employer who has been cited for any high-gravity serious, willful, repeat, or failure to abate violation within the last five years will receive a 10% increase on the current citation (conversely, if no violations during that period, employer will receive a 10% reduction).



– Minimum penalties for serious violations will be increased to $500.00.

– Reduction of OSHA area directors' discretion for potential penalty reductions they

can offer without obtaining approval from OSHA regional office.

– The 10% reduction for employers participating in a strategic partnership will be

eliminated.

– Raising the way in which final penalties are calculated by applying final penalties

serially, starting with the gravity-based penalty and deducting the history, good-

faith, size, and quick-fix reductions in turn.

– Raising gravity-based penalties from a range of $1,500 to $7,000 to a range of

$3,000 to $7,000.

• Dr. Michaels stated in the OSHA press release announcing these

changes: "OSHA inspections and penalties must be large enough to

discourage employers from cutting corners or underfunding safety programs

to save a few dollars."



• OSHA delayed implementation of this penalty enhancement policy for several months. Finally on September 14, 2010, OSHA Deputy Assistant Secretary Jordan Barab announced that OSHA would launch these new higher penalties in October, and that OSHA "is back to its original function of enforcing law and order."

• OSHA state plan states have objected to OSHA's plan to move forward with these new increased civil penalties. In a letter addressed to David Michaels dated August 6, 2010, the board of the Occupational Safety and Health State Plan Association (OSHSPA) stated:

– They have "very serious concerns about this unilateral decision to impose an enforcement procedure absent any statutory change to the OSH Act by Congress."

– OSHSPA criticized OSHA leadership for failing to consult with them on a number of policy decisions including the new requirement that all state plan states have to adopt all future NEP programs as well as the new mandatory penalty increases.

– OSHSPA noted it believes "there is a strong disconnect between OSHA's stated rationale for implementing new penalty procedures and the employers/employees likely to be impacted the most by this change. State Plan States' experience has shown that an effective method to achieve greater compliance among small employers is by focusing on education and training while increasing the likelihood of an onsite inspection" rather than higher penalties, which will disproportionately impact small businesses.

– OSHSPA stated that it believes that "OSHA's approach in developing the new penalty calculation procedures was misdirected from the beginning because it started with the premise that raising the average serious penalty significantly would provide a deterrent effect, instead of focusing on what changes to the penalty calculation procedures for serious violations would most likely result in the elimination or reduction of serious injuries, illnesses, fatalities.―

• This new penalty policy is effective as of October 1, 2010 (OSHA announced on October 12, 2010)

58


Citation and Enforcement/Role of Solicitor's Office

• SOL Operating Plan (draft Fall 2010)

– Litigate cases across regions: SOL will focus on cases that "highlight" significant violations to let the regulated community know "that we are casting a broad enforcement net and that worker protections will be enforced."

– Engage in enterprise-wide enforcement: SOL has been working with OSHA (and other client agencies) to "develop strategies to target unlawful practices that permeate an entire enterprise, company or industry instead of one particular workplace" and SOL will "intensify" these efforts in 2011.

– Identify and pursue test cases: SOL will work with OSHA to "challenge legal principles that impede worker protections." Successful challenges in these cases "will advance workers' rights."

– Increased use of injunctive relief: SOL will work with OSHA to seek injunctive relief in more cases to respond to employers who "often decide that penalties simply represent the cost of doing business" and to "ultimately achieve greater compliance with worker protection laws."


Citation and Enforcement/Role of Solicitor's Office

• SOL filed complaint against U.S. Postal Service (USPS) on July 6, 2010 for electrical safety violations (including the risks of electrical shock and electrocution) not just for the initially cited facility in Providence, Rhode Island, but for 350 other UPSP locations. This is the first use of the "enterprise-wide" liability strategy--SOL requests "enterprise-wide" compliance with applicable standards, including work practices, training and PPE, and seeks order to direct USPS to withdraw and revise operating and safety programs.

• DOL Press Release:

– Solicitor of Labor Patricia Smith: "When the same safety violation is discovered in multiple locations of an organization, we need an enterprise-wide remedy to protect workers from the hazard. The Department of Labor will seek other opportunities to utilize this remedy."

– OSHA Assistant Secretary Dr. David Michaels: "Even though it was aware of the hazards, USPS failed to institute the necessary measures to protect its workers. The Complaint filed today seeks to put a stop to this irresponsible behavior."


Citation and Enforcement/Role of Solicitor's

Office in OSHA Enforcement

• SOL represented OSHA to obtain a subpoena from U.S. District Court on May 12, 2011, requiring an employer's workers' compensation insurance carrier to produce documents generated during a workplace safety audit and review.

• According to the DOL Press Release, the court determined that OSHA's jurisdiction to investigate workplace fatalities supported the agency's request for "relevant evidence" which included copies of site safety inspections, applications for insurance coverage for the site, and correspondence between the employer and the insurance carrier. The court held that the requested documents "reasonably related to the investigation of the incident and the question of OSHA jurisdiction.―

• Dr Michaels praised the court's decision, noting that it "does illustrate that workers' compensation and OSHA are not separate worlds divorced from each other. Workers' compensation loss control activities overlap with OSHA's efforts to bring about safe and healthful workplaces, and in order to achieve a safe and healthful working environment for all Americans, all efforts of business, insurance, labor and government must move forward together."


OSHA Enforcement / Recent Developments

• Whistleblower Enforcement

• OSHA announced on August 1, 2011 significant changes to its

whistleblower program

• OSHA released the Internal Review Report developed by OSHA

Task Force with the charge to review and improve the program

• This report recommended the following changes:

– Restructuring: (1) Whistleblower enforcement division will now report directly to

OSHA Assistant Secretary; (2) hiring new investigators

– Training: (1) National whistleblower training conference held in September 2011

including participation by Solicitor’s office

– Program Policy: New Whistleblower Investigations Manual issued; this Manual

includes requirement that investigator will make ―every effort‖ to interview

complainant

– Internal Systems: Steps to improve internal monitoring and controls of

whistleblower program

62


Construction Enforcement / Recent

Developments

• Continued focus on

Trenching

– Examples from

Mercerville, Ohio and

Auburn, Alabama where

OSHA inspector pulled

employees out just prior

to collapse of trench

• Scaffolding

63


• Fall Protection

– Withdrawal of the ―Plain Language‖ Directive (03-00-001) and

replacement with the Compliance Guidance for Residential

Construction (STD 03-11-002)

– Dr. Michaels letter to NAHB on June 8, 2011

– Dr. Michaels Memo dated September 22, 2011 including

guidance to the industry until March 15, 2012.

This guidance includes:

• allows additional good faith penalty reductions

• allow 30 days to fix fall protection problems

• OSHA will continue to devote efforts to compliance to the residential

homebuilding industry

64


Developments


• Nail Gun Safety Guidance

• Construction Industry Digest Guidance

• ACCOSH—new chairman Pete Stafford (AFL-CIO

Building Trades Department)

65


Developments


Third-Party Privilege

• Does attorney-client privilege apply to documents created by a non-attorney third-party?

• Matter of first impression for Commission: SOL v. Delek Refining Ltd. (July 11, 2011)

– OSHA cites Delek with one serious and one willful violation under PSM standard. Delek challenges citations.

– During discovery, Secretary subpoenaed draft report by third-party consultant Delek says drafted by third-party to assist Delek’s counsel in understanding technical aspects of PSM compliance.

• Commission concludes privilege could protect document if: – Created in response to client seeking legal advice from attorney

– Client provided information to third-party to create document at issue; no privilege if third-party relies on its own information

– Counsel needs (or will be significantly assisted by) third-party analysis to understand issue in order to offer legal advice

• Commission remands case without deciding if Delek satisfied privilege test.

66


Impact of Delek

• Unanswered questions: what constitutes legal advice in construction/manufacturing industry? In anticipation of litigation only? Pre-citation legal advice?

• Important to establish early that third-party analysis or assistance is for benefit of attorney.

– Consider attorney retaining third-party rather than company.

– Provide information to third-party, don’t rely on third-party conducting its own investigation, as that will not establish third-party relied on company confidences to assist counsel.


Multi-Employer Worksites

• Under the multi-employer policy, in addition to the employer that has employees exposed to the hazardous condition, OSHA may also issue citations to the employer that is responsible for correcting the hazardous condition even if that employer has no employees exposed to the hazardous condition.

• The legal justification for the multi-employer policy is 29 U.S.C. § 654(a)(2) of the Occupational Safety and Health Act (―OSH Act‖), which states that ―each employer …(2) shall comply with occupational safety and health standards promulgated under this chapter.‖ 29 U.S.C. § 654(a)(2).

• In 2007, the multi-employer policy was struck down by the Occupational Safety and Health Review Commission (the ―Commission‖) in the decision Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 (April 27, 2007) (―Summit I‖).

– The Commission held that the multi-employer policy was contrary to OSHA’s regulation, 29 C.F.R. 1910.12(a), and held that OSHA could no longer issue citations to controlling employers that did not have its own employees exposed to the hazardous condition.

– The Commission’s decision was based on a narrow reading of 29 C.F.R. 1910.12(a), in which employers are only responsible for his/her employees.

– OSHA appealed the decision to the 8th Circuit.

68


Multi-Employer Worksites:

The Litigation

• Secretary of Labor v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009)

– The Eighth Circuit Decision (vacating and remanding back to the Review Commission):

• The plain language of Section 1910.12(a) does not preclude OSHA from citing controlling employers

– Undertaking a grammatical analysis of Section 1910.12(a), the court found that the regulation mandated that employers provide two distinct protections to employees

– (1) an employer must protect the ―employment‖ of each of his employees (i.e., an employer must protect his own employees); and

– (2) an employer must protect the ―places of employment‖ of each of his employees (i.e., an employer has a duty to protect other individuals who work at his place of employment, so long as the employer’s own employees are also working at that place of employment)

• The Multi-Employer Citation Policy does not violate Nationwide Mutual Insurance v. Darden, 503 U.S. 318 (1992):

– Summit argued the Policy was based on broad definitions of ―employer‖ and ―employee‖ which were atypical from the narrower common law understanding of an employer-employee relationship, and thus, contrary to the Supreme Court’s decision in Darden

• 29 U.S.C. § 653(a)(2) provided the Secretary with legal authority to issue the Policy

• The Policy does not violate 29 U.S.C. § 653(b)(4) because it neither creates a private cause of action or preempts state law

• The Court did not consider Summit’s argument that the Policy was ill-conceived and counterproductive to the goals of the Occupational Safety and Health Act, finding that such arguments should be addressed to Congress and not the courts

69



The Litigation

• Summit Contractors, Inc., No. 03-1622, 22 OSHC (BNA) 1777, 2009 WL 2857148 (O.S.H.R.C. July 27, 2009)

– The Review Commission Decision on Remand (upholding the Citation against Summit):

• The Secretary was not required to engage in notice-and-comment rulemaking under the Administrative Procedure Act before applying the Policy because it neither imposed new duties nor detracted from existing duties

• Summit had sufficient supervisory authority over the worksite to be cited as controlling employer because:

– (1) Summit’s contract with the owner gave it ―exclusive authority to manage, direct and control‖ the construction at the worksite and placed responsibility on Summit to comply with safety laws; and

– (2) Summit’s contract with subcontractor granted Summit ―complete direction‖ of subcontractor’s use of the worksite and permitted Summit to terminate or remove subcontractor for disregarding safety standards

– Summit stipulated that it had knowledge of subcontractor’s violation of the cited standard

70



The Litigation

• On August 19, 2010, in Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 05-0839 (August 19, 2010) (―Summit II‖), the Commission again addressed the validity of OSHA’s multi-employer policy and this time upheld the policy.

– In Summit II, Summit Contractors was a general contractor for the construction of a 90-unit apartment complex.

– Summit Contractors subcontracted certain work and only had two employees at the construction site. During an inspection, OSHA found certain electrical violations and subsequently issued citations to Summit Contractors.

– Because Summit Contractors was only the general contractor and its employees were not exposed to the electrical hazard, OSHA issued the citation to Summit Contractors pursuant to the multi-employer policy. Summit Contractors contested the citation.

• The Commission, persuaded by the Eighth Circuit’s decision, concluded that the plain meaning of 29 C.F.R. 1910.12(a) permits OSHA to issue citations to controlling employers, such as general contractors, under the multi-employer policy even though the employees of the employer were not exposed to the hazardous condition.

• Summit II unequivocally restores the multi-employer worksite doctrine to its pre-2007 condition.

• BUT, Commission Thompson’s dissents, explaining he would have vacated the citation because, inter alia, that the OSH Act does not authorize MEP.

– Roadmap for an appeal?

71


Citation and Enforcement: The Multi-Employer Worksite Policy

• Multi-Employer Worksites – A Two-Step Analysis:

– Step One. The first step is to determine whether the

employer is a creating, exposing, correcting, or controlling

employer.

– Step Two. If the employer falls into one of these four

categories, the second step is to determine if the

employer’s actions were sufficient to meet its obligations.


The Multi-Employer Worksite Policy –

The Steps in Action

• Responsibilities Under the Multi-Employer Policy:

– ―Creating Employer‖ who creates a violative condition is citable even if the only employees exposed are those of other employers at the site

– ―Exposing Employer‖ even if it did not create the hazard is citable if it (1) knew of the hazardous condition, and (2) failed to take steps consistent with its authority to protect its employees

• if exposing employer has authority to correct the hazard, it must do so

• if exposing employer lacks the authority to correct the hazard, it is citable if it fails to: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures


The Multi-Employer Worksite Policy –

The Steps in Action

• Responsibilities Under the Multi-Employer Policy (cont’d):

– ―Correcting Employer‖ must exercise reasonable care in preventing and discovering violations and meet its obligations to correct the hazard

– ―Controlling Employer‖ must exercise reasonable care to prevent and detect violations on the site; factors affecting reasonable care standard include:

• the scale of the project

• the nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses

• how much the controlling employer knows both about the safety history and safety practices of the employer it controls and about that employer’s level of expertise

• more frequent inspections are normally needed if the controlling employer knows that another employer has a history of non-compliance

• less frequent inspections may be appropriate where the controlling employer sees strong indications that another employer has implemented effective safety and health efforts


What to Expect in FY 2012 and Beyond: OSHA Rulemaking/Policy Initiatives


OSHA Rulemaking Initiatives to Watch for

Impacting the Construction/Contracting Industry

• Injury and Illness Protection Program (IIPP)

– OSHA working to create mandatory and uniformly enforceable requirements for IEPPs

• Has been in development for two years but shows signs of picking up momentum for late 2011/2012

• Backover Injuries and Fatalities

– OSHA seeking comment on proposed technological solutions: camera, radar, ultrasonic devices to detect workers behind vehicles

• Crystalline Silicia

– Seeks to lower permissible exposure limit; prohibit dry sweeping of substance


• Cranes & Derricks

• Recordkeeping – Fatality/Catastrophe Reporting

• Walking/Working Surfaces

• Hazard Communication Revisions

• I2P2

OSHA Rulemaking Initiatives to Watch for

Impacting the Construction/Contracting Industry


Standard Setting in the New OSHA: Revised Standard - Cranes and Derricks

• History of the Revised Standard:

– Proposed rule was originally published on October 9, 2008; open for public comment until January 22, 2009;

– Public hearings were held in March 2009, and the public comment period on those proceedings closed in June 2009

– On August 9, 2010, OSHA published the final rule

– The new rule took effect on November 8, 2010

– This marks the first significant revision to the standard since 1971

– Designed to prevent the leading causes of fatalities, including electrocution, crushed-by/struck-by hazards during assembly/disassembly, collapse and overturn.

– OSHA estimates the new rule affects approximately 267,000 construction, crane rental and crane certification establishments employing about 4.8 million workers



• Significant New Requirements/Modifications In the New Rule for Employers Include:

– Employers must perform pre-erection inspection of tower cranes

– Employers must comply with local and state operator licensing requirements which meet the minimum criteria specified in §1926.1427

– Employers must pay for certification or qualification of their currently uncertified or unqualified operators

– Written certification tests may be administered in any language understood by the operator candidate.

– When employers with employees qualified for power transmission and distribution are working in accordance with the power transmission and distribution standard (§ 1910.269), that employer will be considered in compliance with this final rule's requirements for working around power lines.

– Employers must use a qualified rigger for rigging operations during assembly/disassembly.



• Additional Compliance Assistance Recently Published by

OSHA:

– Assembly and Disassembly Fact Sheet

– Operator Qualification and Certification Fact Sheet

– Signal Person Qualification Fact Sheet

– Qualified Rigger Fact Sheet

• OSHA issued compliance guidance for small businesses

in March 2011


New Reporting Requirements

Proposed Rulemaking

• Current Requirements for fatalities/catastrophes:

– Part 1904

– Report within 8 hours death of employee or in-patient hospitalization of 3 or more employees

• Proposed Rulemaking issued June 22, 2011:

– Report within 8 hours death of any employee or in-patient hospitalization of any employee

– Report within 24 hours work-related amputation

– Comment period was extended through end of Oct.

• Many state-plans already require reporting of any in-patient hospitalizations, without regard to number of employees affected.


Standard Setting in the New OSHA: Walking/Working Surfaces

• OSHA issued an NPRM on May 24, 2010 to update OSHA’s rules covering slip, trip and fall hazards and establish requirements for personal fall protection systems. Comment period expired on August 23, 2010.

– OSHA initiated a proposed rulemaking in 1990 and reopened the record for that rulemaking in 2003.

– Based on the comments received in 2003, OSHA has determined that the 1990 proposed rule is out-of-date and does not account for current technology and industry practice. An NPRM planned since 2008, but pushed to the side.

• OSHA held public hearings on January 18-21, 2011 in Washington, DC on the proposed rule and accepted briefs and post-hearing submissions.

• According to latest OSHA regulatory agenda, OSHA is analyzing and reviewing public comments.

• The rule affects almost every non-construction worker in the United States.

82


Hazard Communication –

New Final Rule Submitted

• OSHA Submitted New Final Rule to OMB Oct. 25, 2011

– Changes criteria for classifying physical and health hazards

– Adopts standardized labeling requirements

– Requires classifying of severity of hazard

– Claims will create ―substantial savings‖ for businesses – will it really?

• Hazard Categories:

– 10 categories for chemicals based on health effects

– 16 for chemicals based on physical hazards

• Unclassified Hazards?

– Category for ―unclassified hazards‖ – chemicals that pose risks but do not meet

specified criteria for physical/health hazards.

– OSHA cites combustible dust as example

83


Hazard Communication Con’t.

• The stated aim of the rulemaking is to help promote consistency in the

identification, classification and labeling of chemicals around the world, and

there is general agreement that the adoption of international standards is a

step in the right direction.

• But the final rules:

– Force a reevaluation and reclassification of the level of danger posed by

dangerous chemicals.

– Dictate, often in minute detail, the content of container labels and other

materials as they move downstream.

• Final Rule may result in significant changes to the procedures by which a

chemical is determined to be hazardous by eliminating:

– The current ―floor‖ of chemicals considered to be hazardous.

– The ability of one toxicological study reporting a possible adverse effect to

trigger a finding that the chemical is hazardous.


Mandatory Workplace Safety Program

Rulemaking – I2P2

• Dr. Michaels supports initiatives requiring employers to develop and follow a hazard reduction plan.

– Has called these measures OSHA’s ―first priority.‖

– Would include hazard characterization and abatement.

• Before his appointment to OSHA, Dr. Michaels had frequently expressed support for a Comprehensive Workplace Safety and Health Program Standard, under which every employer would be required to develop and follow a hazard reduction plan for all hazards on its jobsite by assessing each hazard (both "real and potential") and developing abatements for each such hazard.

• Dr. Michaels had also expressed support for a so-called ―Sarbanes-Oxley for Safety and Health‖ requiring employers to:

– Survey their facilities for the presence of hazards, both real and potential.

– Develop a plan that addresses all hazards.

– Make the plan public, available to workers and community residents to examine and critique.



Rulemaking – I2P2

• DOL’s ―Plan/Prevent/Protect‖ program announced in spring 2010 Regulatory Agenda.

• OSHA, MSHA, OFCCP, and the Wage and Hour Division (WHD) will propose regulatory actions that require employers and others to develop programs that will require all regulated entities to take three steps to ensure safe and secure workplaces and compliance with the law:

– "Plan": The DOL will propose a requirement that employers and other regulated entities create a plan for identifying and remediating risks of legal violations and other risks to workers—for example, a plan to search their workplaces for safety hazards that might injure or kill workers. The employer or other regulated entity would provide its employees with opportunities to participate in the creation of the plans. In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation.

– "Prevent": The DOL will propose a requirement that employers and other regulated entities thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or other regulated entity cannot draft a plan and then put it on a shelf. The plan must be fully implemented for the employer to comply with the "Plan/Prevent/Protect" compliance strategy.

– "Protect": The DOL will propose a requirement that the employer or other regulated entity ensure that the plan's objectives are met on a regular basis. Just any plan will not do; the plan must actually protect workers from violations of their workplace rights.



Rulemaking – I2P2

• OSHA's new Injury and Illness Prevention Program (I2P2) is the prototype for the DOL’s "Plan/Prevent/Protect" strategy.

• This proposed rule will require employers to plan, implement, evaluate, and improve processes and activities that protect employee safety and health.

• It will require employers to provide their employees with opportunities to participate in the development and implementation of an injury and illness prevention program, including a systematic process to proactively and continuously address workplace safety and health hazards.

• This rule would build on OSHA's existing Safety and Health Program Management Guidelines and lessons learned from successful approaches and best practices that have been applied by companies participating in OSHA's VPP and SHARP, and similar industry and international initiatives.

• This project is ―high priority‖ with OSHA and significant staff and resources are deployed on this effort

• This rulemaking is at Pre-Proposal Stage

– OSHA has held five stakeholder meetings

• The next step is SBREFA review—this is important step in this process

– As of November 2011, the SBREFA is on hold and timetable for future action is unclear



Rulemaking – I2P2

• OSHA stated that the scope of the preliminary drafts of this rule will be "broad" in

scope and will "cast as wide a net as possible"

• The as yet unreleased rule includes core elements such as management

commitment, employee participation, hazard identification, hazard prevention,

training, and program evaluation

• Industry and trade associations are concerned that this rulemaking will be unduly

burdensome

– BNA recently reported there is a question as to whether OSHA will allow the use of

employer self-audits to identify hazards to enforce and issue citations

88



Rulemaking – I2P2

• RAND (2008)

– ―There is evidence to suggest that firms that voluntarily and conscientiously

administer safety and health programs achieve reductions in injuries and illnesses.‖

– Review of a limited set of studies found that although ―mostly suggest that

mandatory safety and health programs reduced injuries and illnesses, there are

methodological and confounding factors that render their conclusions uncertain.‖

– ―Thus, these studies do not permit confidence in the effectiveness of mandatory

safety and health programs.‖

• RAND (pending study of effectiveness of CA IIPP regulation)

– RAND study will examine whether inspected workplaces in California in compliance

with the regulation have lower injury and illness rates.

– Do companies that have been cited for IIPP violations show improving injury and

illness rates relative to companies that are not cited?


Employer Safety Culture

• Three elements of effective safety program

– Commitment from senior management

– Active implementation of a formal program led by mid-

management (foreman, superintendent, etc.)

– Employee involvement and practice through example and

demonstration, not directives

• Accountability at all levels of an organization is critical

90


Practical Suggestions



• Know the National, Regional, and Local Emphasis Programs applicable to your facilities. Review compliance with those priorities in mind.

• Ensure that injury and illness recordkeeping data is reported accurately.

– Regular and random privileged audits conducted by inside or outside counsel can identify any errors in OSHA 300 logs and your recordkeeping program. Corrections that are made before the OSHA inspection are permissible and in line with abatement principles embodied in the OSH Act.

– Ensure that recordkeeping personnel are trained and familiar with current requirements.

– Evaluate safety incentive programs to ensure that they do not ―discourage‖ reporting.

• Audits should be considered for specific issues, particularly for employers subject to Local and National Emphasis Programs and those with extensive citation histories.

– Audits may be used defensively to demonstrate employer’s good-faith efforts to address safety and health issues and obviate willful violations.

– Failure to act on recommendations found in audits can be used to demonstrate knowledge and possible ―reckless disregard‖ of or ―plain indifference‖ to requirements.

92



• Think beyond a single facility.

– Be aware of OSHA’s focus on recordkeeping at multiple facility locations, which may trigger multiple citations.

– Be aware of citations at other locations as they may be the predicate for a repeat violation.

– Be aware of incidents and near misses at other locations as they may be the predicate for a willful violation.

• Carefully evaluate the implications of any abatement.

– Do not agree to a method of abatement without evaluating what future compliance issues it may raise for the facility.

– Do not agree to a method of abatement without considering whether other locations are able or willing to conform.

– If drafting a specific method of abatement in a settlement agreement, be sure to provide for the ability to change the method in the future.

• Follow-up inspections from OSHA to verify abatement should be anticipated.



• In the event of an inspection, know the company’s rights and responsibilities.

– Prepare an inspection protocol designating responsible company personnel familiar with OSHA inspections and facility compliance.

• Exercise care in negotiating settlement of any OSHA citations in order to minimize repeat, willful, and SVEP consequences. In negotiating settlements with OSHA:

– Consider rewriting citations to be so fact specific as to reduce their use as a repeat predicate.

• Be more open to contests if OSHA or the Solicitor does not give you the settlement you need or want. The risks to the company of not contesting may now be far greater than challenging OSHA on issues arising from its new agenda.


Questions?


Contact Information

96

Jonathan L. Snare is a partner, resident in the Washington, D.C. Office of Morgan Lewis & Bockius

where he practices in the area of labor and employment litigation with a focus on compliance and

litigation issues under the Occupational Safety and Health Act. Jon is the former Deputy Solicitor of

Labor in the Bush Administration and also served for one year as the Acting Assistant Secretary of

Labor for OSHA.

Dennis J. Morikawa is a partner, resident in the Philadelphia, PA Office of Morgan Lewis & Bockius

and heads the Occupational Safety and Health Law Practice Group for the Firm. He is past

Management Co-chair of the ABA Committee on Occupational Safety and Health Law and has

practiced in the OSHA area for more than thirty years.

Jim Stanley, President of FDR Safety, hasunmatched expertise in counseling clients on workplace

safety and health laws, rules and regulations. Jim has successfully dealt with occupational safety

and health issues while working in both the public and private sectors – as a former career OSHA

official including being Deputy Assistant Secretary of Labor for OSHA and as the Vice President and

Corporate Director of Safety for AK Steel. He has testified extensively as an expert witness on

occupational safety and health and has served on the most important committee advising the U.S.

Department of Labor on safety and health issues.

osha practice - construction safety professionals · osha 2011: an overview con’t old osha new...

Documents