Emergency Response Through OSHA Inspection OSHA BEST PRACTICES May 11, 2012 ACRP GENERAL ASSEMBLY
Presenters • David Johnson, Partner, SmithAmundsen, LLC • Stephen Yates, President, Optimum Results
CATASTROPHIC LOSS PLANNING AND RESPONSE
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.
Investigator/Adjustor • 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 manager • 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 as: • 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 present? 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 involved. • 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 analyses • 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 reports—takes time • Coroner’s 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 claims • 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 employee’s death. • Must also report any incident resulting in the hospitalization of three or more employees
THE OSHA INSPECTION FROMOPENING CONFERENCE THROUGH NOTICE OF CONTEST
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 policy: • OSHA’s 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 itself • More “serious” and “willful” violations
Crackdown on Enforcement Higher penalties: Size of penalty: Reduced 10-40% for employers with less than 250 employees 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 OSHA’s enforcement efforts on employers with a “demonstrated indifference” to safety “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, trenching) 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 reductions 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 employer’s non-compliance with the standard’s terms; • (c) employee access to the violative condition; and • (d) the employer’s actual or constructive knowledge of the violative condition
OSHA Violations Potential Citations: Other than serious Serious Willful Repeat Failure to abate a hazard by OSHA’s deadline
Types of Violations • A serious violation requires only that the employer “knew or should have known” of the violation • 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 obvious” • A willful violation requires evidence of the employer’s 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 employee’s death
Types of Violations • A repeat violation results from OSHA citing an employer for a previous substantially similar violation • 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 $70,000 • 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 violation—SO BEWARE
Criminal Liability There is potential criminal liability if: A violation of a specific regulation The violation was willful, and The violation caused an employee’s death
Criminal Liability Penalty: 6 months imprisonment, and/or $500,000 fine per fatality for corporation $250,000 fine per fatality for individual NO MIRANDA WARNINGS DURING AN OSHA INSPECTION!
Criminal Liability Other criminal liability can result from: Obstruction of justice for interfering with OSHA inspection Falsification of records Lying to a compliance officer TELL THE TRUTH
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 inspection
The Opening Conference Company representative and union representative (if applicable) should attend the opening conference Compliance officer will give reason for inspection 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 program All employees should know what a competent person is 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 employees • Be cordial but cautious, and always remember OSHA’s objective
The OSHA Inspection • Consent: • Employer has a right to request a warrant before inspection • Not always advisable to do so • May increase the compliance officer’s suspicions • May increase future inspections • May put you on OSHA’s “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 employer 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 employees 48
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