LEGAL ISSUES IN CONSTRUCTION SAFETY

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LEGAL ISSUES IN CONSTRUCTION SAFETY

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1. LEGAL ISSUES IN CONSTRUCTION SAFETY

2. LEGAL ISSUES IN CONSTRUCTION SAFETY

3. OSHA Reform Legislation Protecting America’s Workers Act (PAWA) H.R. 2049 (110th Congress, 2007)

4. Protecting America’s Workers Act Whistleblower PAWA Section 202 [§ 11(c) of the OSH Act]: “No person shall discharge or in any manner discriminate against an employee for refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees.”

5. Protecting America’s Workers Act Victim’s Rights PAWA Section 304 [§ 9(a) of the OSH Act]: Definition of ‘Victim’ Rights Modification of Citation Notification and Review

6. Protecting America’s Workers Act Victim’s Rights PAWA Section 304(a): Definition of ‘Victim’: “An employee who has sustained a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8, or a family member of an employee—if the employee is killed as a result of a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8; or the employee sustains a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8, and the employee cannot reasonably exercise the employee’s rights under this section.”

7. Protecting America’s Workers Act Victim’s Rights PAWA Section 304(b): Rights: “On request, a victim shall be afforded the right, with respect to a work-related injury or illness (including a death resulting from a work related injury or illness) involving an employee, to—meet with the Secretary, or an authorized representative of the Secretary, regarding the inspection or investigation conducted under section 8 concerning the employee’s injury or illness before the Secretary’s decision to issue a citation or take no action; and receive, at no cost, a copy of any citation or report, issued as a result of such inspection or investigation, on the later of the date the citation or report is issued and the date of the request; be informed of any notice of contest filed under section 10.”

8. Protecting America’s Workers Act Victim’s Rights PAWA Section 304(a): Modification of Citation: “Before entering into an agreement to withdraw or modify a citation issued as a result of an inspection or investigation of an incident resulting in death or serious incident under section 8, the Secretary, on request, shall provide an opportunity to the victim to appear and make a statement before the parties conducting settlement negotiations.”

9. Protecting America’s Workers Act Victim’s Rights PAWA Section 304(a): Notification and Review: “The Secretary shall establish procedures—to inform victims of their rights under this section; and for the informal review of any claim of a denial of such a right.”

10. LEGAL ISSUES IN CONSTRUCTION SAFETY

12. LEGAL ISSUES IN CONSTRUCTION SAFETY

13. Recognition of Hazards: The Hazard Must Be Recognized. Recognition of the hazard must be established on the basis of, and supported by, the following evidence (with adequate documentation): Employer Recognition Industry Recognition Common Sense Recognition Field Operations Manual (FOM): General Duty Clause

14. Employer Recognition (5 Factors) A recognized hazard can be established by evidence of actual employer knowledge of a hazardous condition or practice. Evidence of employer recognition may consist of written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection. Employer awareness of a hazard may also be demonstrated by a review of company memorandums, safety work rules that specifically identify a hazard, operations manuals, standard operating procedures, and collective bargaining agreements. In addition, prior accidents/incidents, near misses known to the employer, injury and illness reports, or workers' compensation data, may also show employer knowledge of a hazard. Field Operations Manual (FOM): General Duty Clause

15. Employer Recognition (Continued) Employer awareness of a hazard may also be demonstrated by prior Federal OSHA or OSHA State Plan State inspection history which involved the same hazard. Employee complaints or grievances and safety committee reports to supervisory personnel may establish recognition of the hazard, but the evidence should show that the complaints were not merely infrequent, off-hand comments. An employer’s own corrective actions may serve as the basis for establishing employer recognition of the hazard if the employer did not adequately continue or maintain the corrective action or if the corrective action did not afford effective protection to the employees. Field Operations Manual (FOM): General Duty Clause

16. Industry Recognition A hazard is recognized if the employer's relevant industry is aware of its existence. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove this element of a Section 5(a)(1) violation. Although evidence of recognition by an employer's similar operations within an industry is preferred, evidence that the employer's overall industry recognizes the hazard may be sufficient. The Area Director shall consult with the Regional Administrator or designee on this issue. Field Operations Manual (FOM): General Duty Clause

17. Establishing Industry Recognition (7 Factors) Industry recognition of a hazard can be established in several ways: Statements by safety or health experts who are familiar with the relevant conditions in industry (regardless of whether they work in the industry); Evidence of implementation of abatement methods to deal with the particular hazard by other members of the industry; Manufacturers’ warnings on equipment or in literature that are relevant to the hazard; Statistical or empirical studies conducted by the employer's industry that demonstrate awareness of the hazard. Evidence such as studies conducted by the employee representatives, the union or other employees must also be considered if the employer or the industry has been made aware of them; Field Operations Manual (FOM): General Duty Clause

18. Establishing Industry Recognition (Continued) * Government and insurance industry studies, if the employer or the employer's industry is familiar with the studies and recognizes their validity; * State and local laws or regulations that apply in the jurisdiction where the violation is alleged to have occurred and which currently are enforced against the industry in question. In such cases, however, corroborating evidence of recognition is recommended; and/or * If the relevant industry participated in the committees drafting national consensus standards (including ANSI, NFPA, and other private standard-setting organizations. Field Operations Manual (FOM): General Duty Clause

19. Industry Recognition (Continued) Preambles to these standards that discuss the hazards involved may show hazard recognition as much as, or more than, the actual standards. However, these private standards cannot be enforced as OSHA standards, but they may be used to provide evidence of industry recognition, seriousness of the hazard or feasibility of abatement methods. “In cases where State and local government agencies have codes or regulations covering hazards not addressed by OSHA standards, the Area Director, upon consultation with the Regional Administrator or designee, shall determine whether the hazard is to be cited under Section 5(a)(1) (General Duty Clause) or referred to the appropriate local agency for enforcement.” Field Operations Manual (FOM): General Duty Clause

20. Industry Recognition (Continued) References that may be used to supplement other evidence include: NIOSH criteria documents EPA publications National Cancer Institute publications Other agency publications OSHA Hazard Alerts OSHA Technical Manual Field Operations Manual (FOM): General Duty Clause

21. Common Sense Recognition If industry or employer recognition of the hazard cannot be established in accordance with Employer Recognition and/or Industry Recognition, hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it. Should only be used in flagrant or obvious cases. Field Operations Manual (FOM): General Duty Clause

22. LIABILITY through OSHA Fines: Willful $70k, Serious $7k Might be modified by: (Company Size, History, Good Faith, Risk) Repeat and Failure to abate OSHA – Multi-employer work site Controlling employer Creating employer Exposing employer Correcting employer General Duty Clause: 5(a)(1) Discrimination 11 (c)

23. What Employers Can and Need to Do: Bad facts make for bad law. Lessons from Summit and Boston cases. Employer safety policies, manuals, identifying of systemic problems, etc. LEGAL ISSUES IN CONSTRUCTION SAFETY

24. Issues Remaining: Ruling does not mean that OSHA’s multi-employer citation policy is settled because of the statutory enforcement scheme Federal Plan States Eighth Circuit (AR,MO,NE,ND,SD) Non-Eighth Circuit State Plan States Eighth Circuit (IA, MN) Non-Eighth Circuit SUMMIT CONTRACTORS

25. What to Expect: The Eighth Circuit decision has not brought finality OSHA will continue to issue multi-employer citations Will push for decisions in cases arising in other circuits State Plan States will continue to issue multi-employer citations Assert that Rev. Comm’n decisions are not binding on their plans. Rev. Comm’n decisions are, however, generally considered persuasive. At least one state court, in VA, found as the Rev. Comm’n (leading the state agency to amend its rules in response). SUMMIT CONTRACTORS

27. ABC Resources, Committees & Projects ABC Crane Safety Summit LEGAL ISSUES IN CONSTRUCTION SAFETY

28. Questions? LEGAL ISSUES IN CONSTRUCTION SAFETY

29. Thank you! For further information, contact: Mike Hayslip: [email protected] Robert Hirsch: [email protected] LEGAL ISSUES IN CONSTRUCTION SAFETY

30. END LEGAL ISSUES IN CONSTRUCTION SAFETY

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