What Industry Should Do If OSHA Comes Knocking at the Door? by: Walter Siegfried CSP, MS Retired OSHA Certified Safety Professional Ziggy@windsorknolls.com
Options • Don’t answer the door? • Deny entry? • Let OSHA in?
PA Governor’s Safety Conference20 OCT 2009 • Jordan Barab, Acting Assistant Secretary • Strong enforcement: e.g. $58M BP citation • Severe Violators Program: EEP revision • Troubling trends: e.g., “Texas sweep”, dust hazards • Emphasis programs: Refineries, chemical plants • 200 new OSHA personnel in 2010 • Questionable Recordkeeping Practices: Congressional hearings, new OSHA NEP, using hospital records, reporting disincentives
Strategies • Continuous Improvement Process • Proactively apply Occupational Health & Safety Management Systems (ANSI/AIHA Z10) to control hazards • Review recordkeeping very carefully! • Use OSHA’s free consultation? • Establish procedures to handle an inspection • Define inspection scope, chain of command, documentation request procedures, private interviews, etc. with OSHA inspector • Post Inspection Options • Informal conference (informal settlement) • Contest process
Inspection Positives • Effective audit process • Increases health & safety program importance! • Serves to inspire when parties buy into integrated safety management • Reduces employee risk to serious injury & illness
Inspection Strategies • Try “honey” instead of “vinegar” • Constructive EHS program improvement adds value • Limit activities to scope of inspection • Plain view hazards are “fair game” • Duplicate OSHA’s photographs, private employee interviews and sampling • Research thoroughly: OSHA policy, such as • Final Rule preambles • Directives & letters of interpretation • Source standards & base standards • Application of standards: 1910.5 • Case law
OSHA’s LEGAL SUFFICIENCY OSHA 1B Form Prima Facie • Cited standard is applicable • Employer failed to comply • Employees were exposed • Employer knowledge: actual or constructive Apply • Enforcement policy, such as: • OSHA Field Operations Manual • Directives • Letters of interpretation • Multi-employer policy
Affirmative Defenses • Commonly used by employers • e.g., unsafe work practices • Employer’s burden of proof
Affirmative Defenses • Unpreventable employee misconduct • Unpreventable isolated incident • Impossibility: infeasibility • Greater hazard • Multi-employer worksites • Exposing, controlling, creating & correcting employers
Closing Conference • Discuss issues & take notes • Presentappropriate material to OSHA compliance officer: i.e., in terms of compliance-related documentation • Follow company protocol regarding legal counsel • Attorney/Client privilege: e.g. use of an attorney-hired consultant
What Happens After an OSHA Inspection? • OSHA may or may not issue citations. • Citations inform employer and employees of the regulations and standards allegedly violated and the abatement time-frames. • Employer must post a copy of each citation at or near place where violation occurred, for 3 days or until violation is corrected, whichever is longer.
Post Inspection • Informal Conference • An informal meeting may be held to discuss any inspection issues, such as the citation, notice of proposed penalty, or possible contest • §1903.20 covers amended citations, citation withdraws, & settlement agreements • 15 working day contest period limitation • Both parties, including legal counsel, are afforded the opportunity to participate fully
Appeals by Employers • Employer (who wishes to contest) must submit a written objection to OSHA within 15 working days • Notice of Contest • Area Director forwards to the Occupational Safety and Health Review Commission (OSHRC) • OHRC is an independent agency not associated with OSHA • Must be posted in a prominent location or given personally to each employee
Contest Process • If timely, the Notice of Contest is forwarded to the OSHRC • OSHRC is an independent agency not associated with OSHA • Case assigned to an administrative law judge (ALJ) who decides a case based on its merit • Either party may appeal the ALJ decision to the OSHRC and U.S. Court of Appeals