Safety Committees: How to Establish a Process that Yields Big Returns

Transcription

1 Safety Committees: How to Establish a Process that Yields Big Returns Presented by: Adele Abrams Law Office of Adele L. Abrams PC Wednesday, September 4, :30 p.m. to 3:00 p.m. Eastern 12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific or For CD and other purchasing information, contact customer service at: or custserv@blr.com 2013 BLR and HR Hero Business & Legal Resources and HR Hero. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. This webinar qualifies for Continuance of Certification (COC) credit. CSPs will earn COC points for attending this webinar. For further instruction on COC credit reporting, please visit

2 Safety Committees: How to Establish a Process that Yields Big Returns Presented by: Adele Abrams Law Office of Adele L. Abrams PC September 4, 2013 Overview More than a dozen states require safety & health committees by law (AL, CA, CT, FL, MN, NE, NV, NH, NC, OR, TN, WA, WV) State plan OSHA programs may require (there are 21 state plan states) State worker s compensation laws may require or give a discount for employers who implement committees Companies may lack information on how to establish such committees within legal parameters Forthcoming OSHA I2P2 rule may require employee participation as a component, which can be achieved through S&H committees Similar requirements in ANSI Z10 and some ISO standards

3 State Plan Committee Requirements Of 21 state plan states, 10 have S&H management programs (or committee statutes) that infer a joint labor-management committee to carry out audits, make/respond to recommendations States with laws encouraging or providing incentives to establish S&H committees: CA, IN, MT, OH, UT Federal OSHA states may have committee requirements or discounts under WC laws e.g., CT and PA Safety & Health Committees S&H Committee aids and advises both management and employees about S&H pertaining to a plant or company operation; can perform essential monitoring, education, investigations and provide creative solutions to concerns S&H Committee is an organizational structure where members represent a group (giving everyone a voice) This is NOT a safety meeting, where all employees or managers are present committee representatives are limited in number Formal requirements under state law may include keeping minutes, conducting audits etc.

4 Establishing Voluntary Committee Set goals Define rules and responsibilities Choose members and provide staff support Have procedures for taking prompt action when hazards are identified Conduct periodic, systematic inspections and report conditions Establishing Voluntary Committee Review accidents and recommend corrective actions Pursue eduation through videos, demonstrations and training Keep minutes (but remember this creates record of what employer knew and when they knew it) Commit sufficient resources to support committee and remediate non-compliant conditions that are reported Ensure that committee members have whistleblower protection

5 Cal-OSHA I2P2 Requirements I2P2 program must be in writing and identify person(s) responsible Include system to ensure employees comply with safe work practices, recognize employees who do so, include training programs, disciplinary actions etc. Include system for communicating with employees on S&H matters, encourage them to inform employer of hazards without fear of reprisal, communicate through labor/management S&H committees or other means that ensure communication... Periodic inspection of workplace to identify unsafe conditions and practices and keep records for 1 year Document S&H training for each employee and keep record for at least 1 year Employers who elect to use a labor/management S&H committee shall be presumed to be in substantial compliance if: Committee meets at least quarterly Prepares and makes available written records of S&H issues discussed (keep for 1 year) Review the results of the periodic workplace inspections Review investigations of accidents and incidents resulting in I/I or exposure to hazardous substances, and suggest ways to prevent future incidents Review allegations of hazardous conditions brought to attention of committee Submit recommendations to assist in evaluating employee safety suggestions Verify abatement action concerning Cal-OSHA citations Washington State I2P2 The I2P2 program includes S&H committee mandate for employers with 11+ workers Minutes must be recorded and maintained for one year and produced to OSHA upon demand Must be at least as many employee-elected members as employer-selected members Committee must: Evaluate accident investigations to determine if causes have been identified and corrected Evaluate I2P2 program and recommend improvements Document attendance

6 Oregon Committee Requirements Has covered all employers since 2009 Committee must meet monthly and prepare and maintain minutes for 3 years If there are > 20 workers, committee must have at least 4 members, equal # of management and labor reps Committee must: Conduct quarterly workplace S&H inspections, Participate in developing accident investigation procedures, Establish a hazard reporting system for employees, Review inspection, incident and accident investigation reports, and Have a written S&H policy. Minnesota Requirements WC Legislation Labor-Mgmt S&H committee required since 1995 as part of WC Reform bill Employers with >25 workers must have joint committee; smaller employers are covered if have high lost-workday incidence rate MN-OSHA can issue serious citations to employers lacking S&H committees Must have regularly scheduled meetings unless CBA provides otherwise Employee reps must be selected by employees (union or peers if nonunion) but if no one volunteers, then management can select reps If have EMR of 1.4 or greater, must do quarterly S&H audits; if lower EMR, then do as necessary Records of hazards identified by committee must be maintained for 2 years and made available to MN-OSHA Any identified hazards that were not corrected will be cited as willful with fines of up to $70,000 each

7 NC OSHA Committee Laws NC-OSHA law requires S&H management program with committee requirement for employers with 11+ workers (including those on multi-employer worksites) Requires mandatory annual S&H audits, must be in writing and kept for 2 years Must have written compliance plans for noise exposure, LOTO, HazCom, respiratory protection, life safety code and confined spaces Must have written checklist of potential hazards to be inspected quarterly by committee Committee members must have training on: hazard identification, accident/incident investigation, employee rights and employer responsibilities under S&H programs and committees Act, recordkeeping requirements for WC laws, most common accident causes, and most-cited OSHA standards. CT Workers Comp Law Every covered employer must have a S&H committee (those with 25+ workers or with higher than average incidence rate) Equal number of labor/management reps Non-managerial employees select worker reps If workers do not report to fixed location, a single centralized committee may represent the concerns of covered employees Must meet at least quarterly Keep roster of members (names/depts), minutes, attendance records, keep all records for 3 years Committee must share ideas concerning: safety investigations, incidents/accidents/illnesses, training programs including those dealing with reproductive health, training on effects of substance abuse on workplace safety and accidents Training must be provided at no cost to employees

8 PA Voluntary Committee Approach Under PA WC laws, committees are not mandatory but ER will get 5% reduction in rates if have committee and maintain minutes Committees must have at least 2 ER and 2 EE reps, meet monthly, and be in operation for at least 6 mo. Committee members must be trained on safety committee operation, hazard inspection, accident investigation, meeting agendas, attendance records and keeping minutes Developing a S&H Committee Lay the groundwork be familiar with the requirements in the jurisdiction(s) where your company does business Develop or modify existing S&H policy if needed to address: Reason(s) for establishing committee Need for cooperation and support at all levels General statement concerning roles, responsibilities and expectations of management, supervisors and workers Communicate the new policy to all managers, supervisor and workers Identify and communicate with managers who will be affected by the committee the purpose, start date and what is needed to support the committee Educate employees through meetings, newsletters, memos, postings about the purpose, when committee will become active and what is expected of employees (ongoing process)

9 S&H Committee Member Duties Attend all S&H Cmte and other S&H meetings Report unsafe conditions and practices Review all accidents and near-misses Recommend ideas for improving S&H Work in safe and healthful manner Observe how S&H are enforced in workplace Complete committee assignments on time Act as work area representative (subject to CBA) in matters pertaining to S&H Determining Membership Subject to statutory requirements; otherwise upper management determines committee size Talk to potential representatives (management and labor conduct similar process). Look for: Dedication to preventing I/I Interest in serving Communication skills Ability to see other viewpoints Credibility Ability to get things accomplished Appoint and notify representatives Ensure all major work activities are represented Send rules and support info to members, and make them aware of time and compensation requirements Conduct intro training for members on organization, operation, meeting methods etc. (and document training!)

10 What is a Good Committee? Well organized Clearly defined purposes written agenda in advance! Realistic and measurable objectives and completion dates Knows extent of its authority Supported by upper management in terms of time, effort and money Clearly defined roles and responsibilities Seeks employee input Well-documented notes and minutes (watch for legal requirements on record retention) Defined meeting schedule (may be monthly, quarterly laws may dictate) Conducting S&H Committee Meetings Elect chairs (labor & mgmt) one to conduct meeting, one to record, and reverse roles for each meeting Follow the agenda and start on time Take written minutes Establish ground rules and discuss duties (as required by law and as assigned by management) Determine logistics will there be scheduled inspections, by whom, how reported Discuss recordkeeping system & requirements Resolve issues and make written recommendations Post minutes to inform employees of actions

11 Typical Agenda Welcome and call to order Introduction of representatives and guests Review previous minutes and agenda Old Business: items not covered or resolved in previous meeting New Business: items that need to be addressed or resolved Employee suggestions Safety concern reports Formal observation/inspection reports Accident investigation reports OSHA 300 Log Reports (or MSHA Form Reports) Training issues and plans Recommendations to management Next meeting date, time and location Discussion Methods Should be established in advance. Methods include: Majority Rule: requires group members to consider options, discuss pros and cons, and vote. Adopt option that receives a plurality or majority of votes One-Liners: Allow each member to speak what is on their minds one at a time, in a short-form manner Surveys: Ask for a show of hands to determine what members think of proposals, which allows everyone to express opinion. Small group discussion: breakout into 4-8 people on specific topics and return to main group with ideas Brainstorming: no criticism allowed but each member contributes ideas (use of flipchart is helpful) Consensus decision-making: gives each member veto power over proposal alternative is to let members opt out goal is to find the most universal decision possible.

12 Legal Issues??? In Electromation, dupont, and EFCO cases, NLRB held that some committees may be employer dominated labor organizations in violation of Sec. 8(a) of the NLRA. Labor organization is defined as any structure which exists in whole or in part for dealing with terms and conditions of employment. Management can safely communicate with employees about workplace problems as long as they don t listen to ideas or respond to suggestions therein lies the problem! Workplace S&H is considered part of the terms and conditions of employment Legislation to legalize joint L/M safety committees (TEAM Act) was repeatedly introduced but never enacted (Clinton vetoed). Technically, S&H committees are illegal in nonunion workplaces under current NLRA law but rarely prosecuted in recent years (most cases arose in mid-1990s) Legal Issues??? BUT Crown Cork & Seal decision upheld legality by finding S&H cmte did not exist for purpose of dealing with the company but instead exercised independent managerial discretion To avoid problems: Integrate committee into actual management structure Ensure committee actually exercises managerial functions comparable to what an individual manager would do Where veto power over committee decisions exists, ensure it is used sparingly and establish guidelines for its exercise Eliminate any aspects of review that involve a pattern of proposals, response, and compromise Make sure employees self-select or management appoints volunteers Make sure employee(s) participate as individual and not as representative of other workers Rotate terms for serving on committees Make sure management does not veto or control meeting agenda Don t start committee formation while in middle of union contract negotiations or organizational efforts In union setting, discuss formation of cmte with union and abide by CBA.

13 Conclusion S&H Committees can improve performance and boost morale of workers and management Must be carefully structured to comply with regulatory dictates or WC law requirements Ensure paperwork documentation is properly done Remember that OSHA can use the results of S&H audits to issue willful citations if corrections not timely made No privilege attaches to S&H committee minutes, reports, or recommendations If union, adhere to CBA provisions If nonunion, ensure that employer does not dominate proceedings if employee suggestions are to be acted upon State law requirements should provide defense to any unfair labor practice claims under NLRA Questions??? Adele L. Abrams, Esq., CMSP

14 Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

15 Speaker Biography Adele Abrams Adele Abrams, Esq., CMSP, is an attorney and safety professional who is recognized as a national expert on occupational safety and health. She heads a tenattorney firm that represents employers and contractors nationwide in OSHA and MSHA litigation, and provides safety and health training, auditing, and consultation services. She is a Certified Mine Safety Professional, and a Department of Labor approved trainer. She is also a professional member of the American Society of Safety Engineers, and is co-author of several safety-related textbooks. She is chair of the National Safety Council s Business & Industry Division committee on regulatory and legal affairs. She is admitted to the Bars of MD, DC and PA, as well as multiple federal courts including the US Supreme Court.