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Pushing Back When OSHA's Unreasonable: Building A Winning Ha

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Travis Vance

on 12 July 2018

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Transcript of Pushing Back When OSHA's Unreasonable: Building A Winning Ha

In November 2015, your facility in Philadelphia was cited for a serious violation of a fall protection standard and a serious violation of a personal protective equipment (PPE) standard. Both citations carried a proposed penalty of $7,000.

Case Study
The Man in the Arena
A. Bill Clinton
B. Teddy Roosevelt
C. Winston Churchill
D. David Lichtenberg
Who Said That?
“It is not the critic who counts . . . The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
OSHA offers you the
following proposal:

Reduce the PPE violation to Other Than Serious and $3,500
Reduce the fall protection violation to Other Than Serious and $0

Do you accept OSHA’s deal?
A. Yes /B. No

Almost 3 years later, on July 19, 2018, you learn that an accident involving a forklift occurred at 2:00 p.m. on the day before, July 18.

The employee involved in the accident suffered an injury, drove himself to the hospital and was admitted overnight.

Neither the injured employee nor the two employee witnesses informed management of the accident.
Case Study
1. Can you drug test the employee?
A. Yes/ B. No
2. Can you discipline the employees for not notifying management of the accident/injury?
A. Yes/ B. No
3. Do you call OSHA?
A. Yes/ B. No
4. Do you have a safety bonus program?
A. Yes/ B. No
Case Study (cont'd)
OSHA's New Drug Testing Rule
OSHA has stated that a blanket post-accident drug testing policy may be improper. Drug testing can be conducted post-accident if 1) state law allows; 2) the accident/injury was likely caused by an impairment and/or 3) the test will determine if the impairment existed at the time of the accident/injury (if available).
New Reporting Requirements
Case Study
Throughout the Inspection, Remember
The Opening Conference
Should You Demand a Warrant?
Under OSHA's new guidance, an employer must have an injury/accident reporting procedure that is reasonable and does not discourage employees from reporting injuries. OSHA likely will determine that a reporting procedure is compliant if it allows an employee to report an injury within a reasonable time but no later than the end of the shift or within eight hours.
After you call OSHA, a CSHO appears later during the day on July 19, 2018, at the door of your Florham Park facility, demanding to conduct an inspection.

Q: Do you have to allow this inspection?
Do you call OSHA about the hospitalization or report it online?

When ?



Reporting an Injury
- Policy Call
- Few employers routinely require it, and we usually counsel against it
- May be necessary under unusual circumstances
- It is your site (your house)
- You have rights
- For the inspection to be conducted at reasonable time
- For the inspection to be conducted in a reasonable manner
- OSHA has 6 months to complete the inspection
Determine the Purpose & Scope of the Inspection
Q: OSHA tells you that it intends to expand the scope of the inspection to include your ladders program, LOTO program, and emergency action plan. How do you respond?
Can OSHA do this?
- Set ground rules for inspection
- Don't volunteer information
- Treat the CSHO with courtesy and respect
- Notify corporation officials/counsel
- Trade secret issues
- Coordinate with contractors/on-site vendors
During the Opening Conference, the CSHO asks for the following documents:

1. Your entire LOTO program;
2. Your PPE purchase invoices for last 3 years;
3. Your OSHA 300/300A forms for last 3 years;
4. Your Safety Data Sheets;
5. Your forklift training records for the last 2 years.

Do you have to give the CSHO these documents?
Opening Conference
Pushing Back Means . . .
Have a written OSHA inspection response plan in place;
Assure reception staff is trained;
Who is the right person to contact (in-house counsel; out-house counsel)?
What do you say to OSHA?
Pushing Back Means . . . Being Prepared
Post the OSHA Poster!
Assign Responsibilities
Update Training/Recordkeeping
Housekeeping
Hazard Assessment & Abatement
Review Previous Citations/Audits/Reviews
Coordinate with Staffing Agencies
Citation 1 Item 1
Type of Violation:
REPEAT
- 29 CFR 1926.501: Employees of a subcontractor were exposed to falls of up to 25 feet without fall protection: (a) On or about July 19, 2018 and at times prior, the employer did not ensure that workers were protected from falls. This is a repeat of an earlier citation for violation of 29 CFR §1926.501, Inspection No. 12345678, of employer’s Philadelphia facility, which became a final order on November 30, 2015.
Date By Which
Violation Must be Abated By: 9/30/2018; Proposed Penalty: $129,000.00

Citations Arrive
1.
Opportunity Costs
(Has your company ever been cited for an OSHA violation?); new federal regulations/black list
2.
Public perception
3.
Abatement costs
- How much will it cost to make the changes/repairs OSHA requires? Is it still feasible to do your work?
4.
Repeat/willful costs
(3-5 years)
5.
Increased insurance/bond premiums
6.
Use of OSHA citation as evidence of negligence
in companion liability case
7.
Referral to other agencies
, leading to additional penalties (e.g., EPA)


Costs of Paying an OSHA Citation
OSHA Inspections & Citations
Building A Winning Hand
Travis W. Vance
Fisher Phillips
July 19, 2018

Why Me?
Inspection Priorities:
- Imminent Danger
- Fatalities/major accidents
- Employee complaints
- High-hazard industries
- Special Emphasis Programs
- Self-referral inspections
OSHA's Settlement Offer

The Walk-Around
- The Inspection may end the same day it begins, or take up to several months
- Employer has absolute right to accompany Compliance Safety & Health Officer (CSHO)
- What area should the CSHO visit?
Keep All Requests Within the Agreed Upon Scope!
- "Please provide the names of all temporary workers."

- "Please provide names of all contractors working on site when I was present. "

- "If you don't provide the lock-out tag-out program by today at 5:00 p.m., I will note that it does not exist."
You take the CSHO outside to your three-story warehouse where you find 3 employees of a subcontractor working to install equipment about 25 feet above the ground, without fall protection.

The CSHO takes a video of the work being done and asks you whether you think the workers should have fall protection.


Back to the Inspection . . .
Q. Do you have to allow the CSHO take photos or videos?


Photos & Videos
CSHO will take photos and videos
- you have the right to protect proprietary processes/information

CSHO may take sampling/tests

Advise CSHO that only side-by-side testing will take place
- Have IH specialist watch the calibration process
- Remember to ask questions and develop defenses
Photos & Videos
Do you answer the CSHO's question about whether the workers should have fall protection?

Case Study
As you talk near where the work is being conducted, one of your supervisors and an hourly worker drive by on forklifts discussing whether the subcontractor employees should be wearing fall protection. The CSHO wants to interview the hourly worker and the supervisor.

Do you have to permit these interviews?

Case Study
Can someone sit in on those interviews?

Should sign a witness statement?

Can the CSHO inspect the forklifts?

Case Study
Interviews
- -Schedule them away from production floor
- Have pre-selected employees if available
- Conference rooms are best
- Advise employees of their rights, including option to decline interview and requirement to tell the truth!
After completing his investigation at the Hickory facility, the CSHO asks if he can be taken to your truck shop in Lenoir.

Is this request appropriate?


Case Study
Can you be held responsible for the contractor's OSHA violation?

How can you limit this exposure?

Case Study
- Employer’s opportunity for free discovery

- Usually, brief description as to possible violations – no discussion of penalties, classification and abatement dates

- Note any abatement made
during the inspection

- Suggest possible corrections

-Request photos and monitoring results

- Discuss appeal rights

- Not a time for debate

- Take good notes and attempt to better understand any possible citations


Closing Conference
Citations Arrive
OSHA also cites you under 29 CFR 1904.35 because your post-accident drug testing program unlawfully punishes employees if they report an injury.
The penalty is $12,934.
Are there other considerations you must undertake prior to paying an OSHA citation?

Before Paying OSHA . . .
Safety is Paramount
- Workplace injuries cost our economy over $198.2 billion per year ($0.5 billion per day)
- OSHA reported that you can expect to save $6 for every $1 you spend on a safety program
- Occupational Death- $910,000 loss to your company
- Lost Workday Injury- $28,000 loss to your company
- Indirect Cost of WC Claim- 4.5 times payout to employee
Questions??
Thank You!!
Travis W. Vance
704-778-4164
tvance@fisherphillips.com



Opening Conference (Cont'd)
Alternatively, the CSHO states that since you are on a emphasis program list, he will be expanding the scope of the inspection to comprehensive or "wall-to-wall."

(e.g., Mar-Jac; Poultry REP)
OSHA & Your Industry
Most Common Citations

- Railing/Guarding
- Lockout/Tagout
- Confined Space
- Respirators
- General Duty
- Machine Guarding
- Electrical Issues
- Personal Protective Equipment (PPE)
- Noise Exposure
- Record Keeping


Case Study (Cont'd)
5. Do you take statements from the injured employee and witness?
- how?
6. Do you call counsel?
- why?
7. Do you have to electronically upload your OSHA 300A to OSHA's website?

What is the Scope?
How is the Opioid Crisis Impacting Drug Testing

1. One Strike Rule?

2. Employee Assistance Program

3. Educating Employees?
OSHA's New Penalty Maximums

- Serious/Other Than Serious- $12,934
- Willful/Repeat- $129,336
Full transcript