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OSHA BEST PRACTICES Emergency Response Through OSHA Inspection May 11, 2012 ACRP GENERAL ASSEMBLY * OSHA civil liability: Potential Citations Other than serious ... – PowerPoint PPT presentation

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  • Emergency Response Through
  • OSHA Inspection

  • David Johnson, Partner, SmithAmundsen, LLC
  • Stephen Yates, President, Optimum Results

Responding to Catastrophic Loss After it Occurs
is Too Late
  • Prepare in advance of a catastrophic event
  • Time immediately after the accident is critical
  • Implementation of an immediate response program
    minimizes risk
  • This must be in place BEFORE the catastrophic
    event occurs

Benefits of Effective Immediate Response
  • Secure an early evaluation of the loss
  • Both strengths and weaknesses
  • Identification and preservation of evidence
  • Everyone in response team must work together
  • Have clearly identified roles
  • In-house counsel, in-house claims management,
    technical experts, investigators, outside counsel

Pre-Incident Risk Analysis
  • Effective immediate response begins with analysis
    of specific risks
  • Think about worst case scenarios
  • Identify risks and hazards
  • Plan for how and with whom you will address risks
  • Duty to identify and minimize risk is ongoing
  • Predicting beforehand minimizes risk, and
    generally reduces costs
  • No plan is perfect
  • but planning makes response more effective.

Pre-Incident Risk Analysis
  • Job-Hazard Analysis
  • A step-by-step method if risk identification
    related to a particular task
  • List all steps required to complete task
  • Review each step to determine what healthy and
    safety hazards are present
  • Determine measures to eliminate or lessen effects
    of those hazards
  • An outside inspection or audit of the health and
    safety program

Pre-Incident Risk Analysis
  • Look for various control measures
  • Engineering Controls
  • Machine guarding, guardrails, ventilation, and
    raw material substitution.
  • Administrative Controls
  • Job rotation and training
  • Personal Protective Equipment (PPE)
  • Last line of defense

Pre-Catastrophic Loss Preparation- The Playbook
  • Identify the response team
  • Team will include
  • In-house counsel, safety specialists, HR, IT
  • Outside counsel
  • Independent adjustors/investigators
  • Experts and specialists and
  • Insurer contact
  • Have contact information readily available
  • Policy considerations include
  • Media policy, response team members, record
    retention policy

Outside Counsel
  • After notice of a catastrophic occurrence,
    response team leader should contact rest of team
  • Outside counsel should be FIRST contacted
  • Involvement of an attorney allows for free flow
    of information under the cloak of privilege with
    team leader.

  • After counsel has been contacted, an investigator
    should be dispatched to the scene and coordinate
    with counsel
  • The investigator should have a high level of
    understanding of OSHA
  • If it is determined that an expert is needed, one
    should also be present to conduct technical and
    scientific analysis

Company Personnel on Scene
  • Supervisory personnel should be present
  • Usually a foreman, superintendent or project
  • Company personnel should NOT speak with anyone
    other than the company representatives, counsel
    and the investigator
  • If approached by law enforcement or OSHA
    investigators, company personnel may need to
    speak, but should first consult counsel

Accident Investigation
  • Should be performed by someone
  • Experienced in accident causation and
    investigative techniques
  • Work processes, procedures, and persons of a
    particular situation

Accident Investigation
  • Report the accident to a designated person
  • Provide first aid/medical care and prevent
    further injuries
  • Investigate accident
  • Identify causes
  • Report findings
  • Develop a plan for corrective action
  • Implement the plan
  • Evaluate the effectiveness of the plan
  • Make changes for continuous improvement

Accident Investigation
  • Look for the Root Cause
  • Example Investigation concludes accident due to
    worker carelessness and goes no further fails to
    seek answers to several important questions such
  • Was worker distracted? If yes, why?
  • Was safe work procedure being followed? If not,
    why not?
  • Were safety devices in order? If not, why not?
  • Was the worker trained? If not, why not?

Accident Investigation
  • Task
  • Safe procedures used? Change in conditions to
    make normal procedure unsafe? Appropriate tools
    and materials available? Were the used? Were
    safety devises working properly? If not, why not?
  • Equipment and Material
  • Equipment failure? What caused it to fail?
    Machinery poorly designed? Hazardous substances
    involved? PPE used? Users properly trained?
  • Environment
  • Weather conditions? Housekeeping a problem?
    Temperature, noise, lighting? Toxic substances
  • Personnel
  • Workers experienced? Adequately trained?
    Physically capable? Tired? Stressed? Health?
  • Management
  • Safety rules communicated and understood?
    Written procedures and orientation available?
    Procedures enforced? Adequate supervision?
    Workers trained? Job hazards previously
    identified? Procedures developed to overcome
    hazards? Unsafe conditions corrected? Regular
    equipment maintenance. Inspections performed?

Accident Investigation
  • Physical Evidence
  • All equipment involved must be secured
  • Chain of custody and investigation protocol
    should be established
  • Secure evidence on scene
  • Witnesses, instrumentalities, documentation
  • Steps to consider
  • Witness statements, photographs, testing and
    sampling, drug and alcohol testing of persons
  • This is where a pre-determined documentation
    retention policy comes into play.
  • Limit risk and exposure.

Rapid Response Activity
  • Identify
  • Persons inured or killed (and notify contacts)
  • Location of the accident-position of injured
  • Date/time of the accident
  • Eyewitnesses
  • Supervisory Personnel
  • All contractors on the site
  • Supervisors of the injured party

Rapid Response Activity
  • Locate
  • Warnings and safety devices on the site
  • Flagging, tie-offs, and barriers
  • Guarding and safety mechanisms
  • Operators manuals
  • Annual crane inspection
  • Daily crane inspection
  • Drug screen results
  • Lease Agreement
  • Load Chart used for this set up
  • Maintenance records
  • Photos and measurements of the accident
  • Signed Job Ticket
  • Contracts of all involved parties
  • Insurance policies and certificates--Later

Rapid Response Activity
  • Determine
  • The activities ongoing at time of accident
  • What the injured party was doing at the time of
    the accident
  • Environmental and weather conditions
  • Root cause of accident
  • Nature and scope of the injury
  • The owner or furnisher of tools or equipment
  • One should preserve evidence or document
    conditions before conditions are altered by
    ongoing construction

Rapid Response Activity
  • Obtain
  • Accident reports
  • Police/Fire department reports, including photos,
    measurements, and accident reconstruction
  • Jobsite progress photographs and any accident
    site photographs
  • Any site, security, or newscast video footage
  • Handwritten or recorded statements of witnesses
  • OSHA investigation documents and reportstakes
  • Coroners records, including autopsies,
    toxicology reports, photos
  • Tool box meeting handouts
  • Safety manuals
  • Safety meeting records
  • Site safety plans

Post-Response Efforts
  • Assembling all information secured and evaluate
    the strengths and weaknesses of potential claims
  • Documenting strengths and weaknesses while the
    information is fresh
  • If facts are favorable, you may respond to claims
    if and when the claim is brought
  • If unfavorable, you can begin to increase
    reserves and prepare an intelligent response to
  • If the claim is not resolved, then you have all
    the information you will need at your disposal to
    defend the claim.

Contacting OSHA
  • Reporting requirements
  • If a fatality occurs, the accident must be
    verbally reported to local OSHA office or by
    using the OSHA toll-free number within 8 hours of
    the employees death.
  • Must also report any incident resulting in the
    hospitalization of three or more employees


Before OSHA arrives
  • What is at stake for the employer?
  • OSHA civil liability and penalties
  • OSHA criminal liability and penalties
  • Abatement costs
  • Negative media attention
  • Disrupted employee relations
  • Increased insurance rates
  • Lost business opportunities, particularly job
    bidding and contracts

Crackdown on Enforcement
  • Under the Obama administration, OSHA has stepped
    up enforcement efforts and increased penalties
  • Clear that current OSHA leadership is strong
    proponent of worker protections, and is using
    penalties to generate revenue
  • Construction industry is a target
  • Crane industry-1926-1400-is big target

Crackdown on Enforcement
  • April 22, 2010, OSHA issued a revised penalty
  • OSHAs thought is that Increased penalties
    results in greater deterrence
  • Publicize citations and do not settle easily
  • Threshold for publication of a violation formerly
    100,000. . . Now, it is 45,000
  • Negative press can be more harmful than citation
  • More serious and willful violations

Crackdown on Enforcement
  • Higher penalties
  • Size of penalty
  • Reduced 10-40 for employers with less than 250
  • No reduction if over 250 employees
  • Good faith requirement
  • A 15 quick fix incentive for immediate abatement
    of hazardous condition
  • Repeat offenders
  • Increased time frame for repeat violations from 3
    years to 5 years
  • Minimum penalties
  • Serious violation penalty now 500
  • Increased penalties for egregious violations

Crackdown on Enforcement
  • Record keeping
  • OSHA looking to stop incentive programs for
    employees who do not report illness or injury
  • Example reward systems where employee receives
    monetary bonus for each month/year with no
    reported injury or illness.
  • Unrecorded injury may be characterized as a
    willful violation
  • OSHA may also view non-payment of bonus as
    retaliatory conduct by employer

Crackdown on Enforcement
  • Severe Violator Enforcement Program-2010
  • Concentrates OSHAs enforcement efforts on
    employers with a demonstrated indifference to
  • Demonstrated indifference means history of
  • Willful violations
  • Repeat violations
  • Failure to abate violations
  • Plus a fatality or catastrophe
  • A higher emphasis industrial operations or
    processes (e.g., fall protection, dust, silica,
  • Prior egregious enforcement of employer

Crackdown on Enforcement
  • Consequences of SVEP Severe violator gets
    heightened scrutiny including
  • Follow up inspections at other worksites operated
    by the employer countrywide
  • Settlement requires increased safety obligations
    (e.g., hire additional safety personnel,
    injury/illness reporting obligations, self
    auditing requirements)
  • Elimination of certain citation penalty
  • Requirement to report any serious violation and
    consent to inspection

OSHA Violations
  • To establish a violation of an occupational
    safety or health standard, OSHA must prove
  • (a) the applicability of the cited standard
  • (b) the employers non-compliance with the
    standards terms
  • (c) employee access to the violative condition
  • (d) the employers actual or constructive
    knowledge of the violative condition

OSHA Violations
  • Potential Citations
  • Other than serious
  • Serious
  • Willful
  • Repeat
  • Failure to abate a hazard by OSHAs deadline

Types of Violations
  • A serious violation requires only that the
    employer knew or should have known of the
  • A willful violation is committed either with
    actual knowledge of the violation or with plain
    indifference to the violation

Types of Violations
  • A willful violation does not result simply
    because a hazardous condition should have been
  • A willful violation requires evidence of the
    employers knowledge or indifference at the time
    of the alleged violation

Types of Violations
  • Willful violations carry higher civil
    penalties-up to 70,000 per citation compared
    with 7,000 for a serious violation
  • Willful violations can result in criminal
    prosecution of the employer and its individual
    managers if the willful violation caused an
    employees death

Types of Violations
  • A repeat violation results from OSHA citing an
    employer for a previous substantially similar
  • Repeat violations can be based on prior General
    Duty Clause violations or specific violations

Types of Violations
  • OSHA maintains a national online database on
    which an OSHA compliance officer can, and will,
    search for any violations previously issued to an
    employer anywhere in the country
  • A violation will be considered a repeat violation
    if the violation occurred within 5 years of the
    final order date of the previous violation

Types of Violations
  • Repeat violations carry penalties of up to
  • To an uninformed employer, what may seem like a
    harmless serious or other than serious
    violation, with a nominal or no monetary penalty,
    may lay the foundation for a subsequent repeat
    violationSO BEWARE

Criminal Liability
  • There is potential criminal liability if
  • A violation of a specific regulation
  • The violation was willful, and
  • The violation caused an employees death

Criminal Liability
  • Penalty
  • 6 months imprisonment, and/or
  • 500,000 fine per fatality for corporation
  • 250,000 fine per fatality for individual

Criminal Liability
  • Other criminal liability can result from
  • Obstruction of justice for interfering with OSHA
  • Falsification of records
  • Lying to a compliance officer

The Opening Conference
  • When OSHA arrives
  • Be courteous
  • Show compliance officer to a conference room or
    empty office
  • Notify designated point person
  • Point person takes control of the inspection and
    is responsible for all communications with
    compliance officer and sticks to him throughout

The Opening Conference
  • Company representative and union representative
    (if applicable) should attend the opening
  • Compliance officer will give reason for
  • Accident, complaint, referral, general
    inspection, programmed
  • This is where management strategy becomes crucial

The Opening Conference
  • If reason for OSHA inspection is an accident-show
    concern for worker safety and promote it
  • First impression on OSHA is important
  • All employees should have knowledge of the safety
  • All employees should know what a competent person
  • If reason for OSHA inspection is an employee
    complaint, ask to see complaint

The OSHA Inspection
  • The inspection may be inevitable, but a citation
    might not be
  • Must manage the inspection process as effectively
    as possible
  • OSHA is there to get the facts, not help you
  • Be informed of your rights and prepare your
  • Be cordial but cautious, and always remember
    OSHAs objective

The OSHA Inspection
  • Consent
  • Employer has a right to request a warrant before
  • Not always advisable to do so
  • May increase the compliance officers suspicions
  • May increase future inspections
  • May put you on OSHAs radar
  • Plain View Doctrine
  • When worksite is visible from a public area, an
    OSHA compliance officer has the right to
    photograph and observe from that location
  • Consent may be given by any management official
    including a foreman or superintendent
  • Make sure employees are aware of this
  • On a multi-employer worksite, consent comes from
    site controller
  • Usually owner, developer, or general contractor

The OSHA Inspection
  • In deciding whether to allow the inspection based
    on an accident, management should consider the
    following matters
  • Did the accident in fact occur involving the
  • Is the accident scene still in existence or have
    the conditions changed
  • If fatality-site frozen until OSHA commences its
    inspection unless doing so creates a hazard to

The OSHA Inspection
  • In deciding whether to allow the inspection based
    on an employee complaint, management should
    consider the following matters
  • Is the complaint valid?
  • Does it identify the correct workplace, employer
    or equipment
  • Does it identify a hazard which in fact exists at
    the worksite

The Walk Around
  • NEVER allow an OSHA compliance officer to walk
    the worksite unattended
  • Company and Union representatives have right to
    accompany the compliance officer
  • Take parallel videos, photos, samples, notes
  • and measurements
  • Do not rely on or expect OSHA to share its
    findings with you

The Walk Around
  • Control of the scope of the inspection
  • Where will the inspector be permitted to go at
    the worksite
  • What operations will the inspector be allowed to
  • If employer allows the inspector broader access
    than to evaluate the accident or complaint, the
    employer is subject to citations for anything
    that the inspector observes because the employer
    voluntarily consented to a broader inspection
  • Whatever the inspector observes during the walk
    around that is in plain view is subject to
  • Communicate scope to inspector to reach an
    informal agreement regarding the scope of the
    inspection before the inspection begins

Multi-Employer Worksites
  • Liability was expanded under Multi-Employer
    Workplace Doctrine
  • Each employer is potentially responsible for the
    safety and health of another employers employee
    if the employer
  • -Creates the hazard
  • -Exposes an employee to the hazard
  • -Is responsible for correcting the hazard, or
  • -Is the controlling employer on the worksite

OSHA Document Requests
  • Insist that requests for documents be made to a
    single source and in writing
  • Considerations include
  • Are the documents produced responsive to OSHAs
  • Dont give OSHA something they havent asked for
  • Is it privileged?
  • Always keep a copy of whats sent to OSHA
  • Never allow the compliance officer unfettered
    access to documents

Employee Interviews
  • Any supervisory employee may be interviewed by
  • Any foreman, crew leader, lead man, or other
    employee considered in charge
  • Applies even if person is in a union
  • Employers Counsel may be present during
    management employees interviews
  • Union or hourly employee may be interviewed
    privately (or with steward) if they consent
  • What is said can be used as evidence
  • TELL THE TRUTH!Lying to OSHA is a CRIME!
  • Can be charged with felony for obstructing a
    federal investigation
  • Can do prison time!!!!

Employee Interviews
  • Employees Rights
  • Right to a private 1 on 1 interview with
    compliance officer-confidential-no retaliation-no
  • Right to refuse to be interviewed by compliance
    to expose them to liability-if refusesubpoenathe
    n employee full scope of rights-legal counsel
  • If consent-right to have person of their choice
    to attend-if compliance officer refuses to
    allow-decline interviewwithout reason
  • Right to end interview and leave at any
    time-without reason
  • Right to refuse to be recorded, photographed, or
    sign statement

Employee Interviews
  • Hourly employees right to legal counsel
  • Right to have person of choice present-so legal
    counsel would qualify
  • Right to be represented in judicial and
    administrative proceedings
  • Employer has obligation to defend employees when
    faced with liability for acts which occurred
    within the course of their employment
  • Potential criminal liability for fatality or
    multiple injuriesright against self

Employee Interviews
  • OSHAs objections to employers legal counsel
    representing an hourly employee during OSHA
  • Employers attorney-conflict of interest-not
    OSHAs right to object to conflict of
    interest-right of employee to accept as long as
    disclosure and knowing waiver of conflict
  • Employee exposure to retaliation for what is said
    in presence of employers attorneybut employee
    protected from retaliation by Act

Employee Interviews
  • OSHAs rights
  • Right to interview the employee in private if
    employee consents
  • Right to have truthful responses to questions

Employee Interviews
  • Employers rights
  • Right to participate in non-private employee
    interviews and, if the compliance officer
    refuses, require that the interviews occur on
    non-paid work time
  • Right to end interviews if disruptive,
    unreasonably interfere with ongoing work or
    become confrontational

Closing Conference
  • Negotiation starts here
  • OSHA knows whats going on-interviews, walk
    around, documents
  • Can be in person or over the telephone
  • Obtain as much information from compliance
    officer as possible
  • What citations will be recommended
  • How will each be classified
  • What should company do going forward
  • What abatement should be done, and how
  • Basis for each citation

Closing Conference
  • Clarify any misunderstandings of fact
  • DO NOT
  • make admissions
  • argue
  • get angry
  • insult the compliance officer or OSHA or
  • discuss the financial situation of your company,
    the economy, or the government

Issuance of Citations
  • Citations arrive by way of certified mail and are
    tracked by OSHA
  • Citations must be received within 6 months of
    inspection or they are stale and can be easily
  • Citations will reference standard(s) violated,
    set out proposed penalties, and outline your
  • Act on Citations IMMEDIATELY

Issuance of Citations
  • Review Citation(s)
  • Factual Errors
  • -Is the Citations Alleged Violation
    Description (AVD) correct?
  • -Did the alleged violation actually occur
  • Legal Errors
  • -Does the specific regulation apply to the
  • -Does another regulation apply?
  • -Is there an exemption within the regulation?
  • -Is the General Duty Clause inapplicable (i.e.,
    does a specific regulation apply to the hazard)

Issuance of Citations
  • Interview company witnesses involved in the
    alleged violation to confirm the facts
  • Review employer documentation of
  • -Applicable safety or health program for the
  • -Employee training
  • -Employer discipline for prior violations of the
    safety and health program

Issuance of Citations
  • Have 15 working days (exclusive of federal
    holidays) from receipt of citation to file a
    written Notice of Contest
  • Failure to file Notice of Contest within 15
    working days of receipt of a citation precludes
    any challenge to any part of the citation

Informal Conference
  • OSHA encourages the informal conference and it
    should be pursued
  • A potential means for resolution without
    litigation or appeal
  • Allows employer to gain understanding of exactly
    what OSHA expects
  • Occasionally, settlement terms may be favorable
    to employer if citation remains as issued
  • Be creative with settlement terms e.g., provide
    additional training

Informal Conference
  • Schedule Informal Conference at the same time
    Notice of Contest is filed
  • Prepare employer representatives for their roles
  • Assemble documents for production at Informal
  • Prepare employers position regarding citations
  • Vacate, amend, reduce classification, reduce
    penalty, modify abatement date

Informal Conference
  • At Informal Conference
  • Explain employers commitment to safety and
  • Discuss employers concern about accepting
    citations that are not factually or legally
    correct because of future liability for repeat or
    willful violations

Informal Conference
  • Articulate employer factual and legal defenses
  • Do not make admissions of violations during the
    Informal Conference
  • Request that citations be vacated, amended, etc.,
    as appropriate
  • Consider OSHAs response to companys proposal
  • Does OSHAs proposal expose company to future
    repeat or willful violations
  • Confirm with OSHA employers abatement
  • If reach settlement, carefully review Informal
    Settlement Agreement to confirm that it reflects
    agreed upon terms

Informal Conference
  • If no settlement, prepare written Notice of
    Contest and file within the fifteen working day
    period if not already done
  • Post Notice of Contest at worksite
  • Employer will be contacted by OSHA Solicitor,
    attorney representing the agency, within several
    weeks to discuss settlement
  • If not done already, consider retaining attorney
    who is experienced in OSHA law to advise employer

Notice of Contest To ContestOr Not To Contest
  • Consider
  • Nature of violation
  • Repeat? Willful? Severe?
  • Proposed penalties
  • Cost to contest
  • Cost of abatement
  • If prohibitively costly and delays completion of
    work, may not want to challenge
  • Whether employer believes citation is proper or
  • Improper standard applied, violation did not
    occur, regulation inapplicable etc.

Notice of Contest
  • After the complaint and answer are filed, case
    goes to OSHRC (Review Commission)
  • Majority of cases settle before going to hearing

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