OSHA And Washington Presented by Joseph A. Wellington, Esq. Carmody & Torrance LLP

Transcription

1 OSHA And Washington Presented by Joseph A. Wellington, Esq. Carmody & Torrance LLP 2011 Carmody & Torrance

2 Scope of presentation OSHA s political leadership speaks OSHA s initiatives OSHA s FY10 enforcement stats The best business defense going forward OSHA s 1989 Voluntary H&S program

3 OSHA S Political Leadership Speaks

4 OSHA s political leadership The President: Barack Obama Secretary of Labor: Hilda Solis Asst. Secretary of Labor (Occupational Safety and Health): David Michaels Deputy Asst. Secretary of Labor (Occupational Safety and Health): Jordan Barab

5 The President Barack Obama We need to level the playing field for workers and the unions that represent their interests because you cannot have a strong middle class without a strong labor movement. 01/30/09

6 The President Barack Obama I m also proud to be here with a leader who is re-energizing the Department of Labor, who recognizes that it is not the department of management, it is the department of labor a daughter of a teamster Secretary Solis. 09/07/09

7 The Secretary of Labor Hilda Solis What a wonderful country where the daughter of a Teamster shop steward can go on to become the Secretary of Labor. 09/11/09

8 The Secretary of Labor Hilda Solis That is why I support your efforts to organize and form a union, and why I have pledged to work with the White House to make the strongest case for the Employee Free Choice Act. We all know that when unions do well, we all do well! Let s never forget how much our country owes to unions and the labor movement. 09/11/09

9 The Asst. Secretary of Labor (Occupational Safety and Health) David Michaels Secretary Solis set the tone for the new administration s commitment to worker safety and health when she walked through the doors at the Department of Labor building in Washington and declared There s a new sheriff in town. 06/14/10

10 The Asst. Secretary of Labor (Occupational Safety and Health) David Michaels As long as OSHA s penalties remain at these low levels, employers who are determined to gamble with their workers lives consider worker injury and illness the normal cost of doing business. They get a meager OSHA fine, write a check and they go on doing business as usual, exposing workers to horrendous hazards. 06/14/10

11 The Asst. Secretary of Labor (Occupational Safety and Health) David Michaels We have a workplace safety and health crisis in this country. 04/28/10 Enhanced enforcement will go a long way to eliminating the catch me if you can mindset prevalent in corporate America. 07/13/10

12 The Deputy Asst. Secretary of Labor (Occupational Safety and Health) Jordan Barab Wisconsin is where (the AFSCME) was formed. This is where I spent 16 years building one of the best safety and health programs in the labor movement 09/25/09 As OSHA moves into even more aggressive programs, we need allies with spines and spirits. We need allies in the progressive business community who will stand along side labor unions and say yes we can 09/25/09

13 The Deputy Asst. Secretary of Labor (Occupational Safety and Health) Jordan Barab To support our efforts, President Obama has asked for the biggest increase in OSHA s budget in anyone s memory over ten percent. This increase of more than $56.6 million would allow us to hire more than 200 new employees OSHA is raising the number of worksite inspections to 40,000 a year increasing our presence where we are needed most

14 The Extent Of Organized Labor In The United States (circa February 2010)

15 Current extent of US employees represented by organized labor Overall unionism keeps declining. Only one in eight workers (12.3%) now belong to a union with the private union employment hitting a record low of 7.2% of all jobs, down from 7.6% in Only one in 13 employees in the private economy pays union dues. In government, by contrast, the union employee share rose to 37.4% from 36.8% the year before. WSJ editorial 02/03/10

16 OSHA FY08-FY10 Initiatives

17 OSHA Initiatives Severe Violator Enforcement Program (06/09) Instance-by-instance penalties (10/09) 200 new employees (FY10 budget) Site Specific Targeting (2010) MSD Recordkeeping (01/10) OBE

18 OSHA Initiatives Changes to administrative penalty computations (04/10) Illness and Injury prevention program i2p2 (05/10) Revised noise interpretation (10/10) OBE Proposed statutory penalty changes OBE

19 Severe Violator Enforcement Program ( SVEP )

20 Severe Violators Enforcement Program ( SVEP ) Effective 06/10/09 Target employers who have been issued willful, repeat and/or failure to abate citations for re-inspections Inspections will also occur at other facilities operated by same employer that may have the same or similar violations

21 Violation-by-Violation Penalty Policy

22 Violation-by-Violation Penalty Policy Policy promulgated 10/21/09 Use of violation-by-violation policy could result in significant penalties, particularly if allegations are for Willful violations Allows OSHA to allege violations on an instance-by-instance basis

23 Violation-by-Violation Penalty Policy For example, one violation could be alleged for each MSD injury not recorded on a revised OSHA 300 log if such entries were required and not made (as opposed to a single violation with several instances) Use of the violation-by-violation policy would result in serious citations being further characterized egregious

24 OSHA Violation-by-Violation Penalty Policy Application Violations resulting in fatalities, a work site catastrophe or a large number of injuries Violations resulting in persistently high rates of worker injuries or illnesses Employer has an extensive history of violations

25 OSHA Violation-by-Violation Penalty Policy Application Employer has intentionally disregarded its safety or health responsibilities Employer s actions evidence bad faith Employer s violations undermine its safety program Employer s actions and/or inactions should result in the issuance of egregious serious citations

26 Hiring 200 New Employees

27 Hiring 200 new employees Done during FY10 Resulted in a 15.1% increase in programmed inspections between FY06 and FY10 (24,759) Resulted in a 8.1% increase in Repeat citations between FY06 and FY10 (2,758) Resulted in a 22.1% increase in Serious citations between FY06 and FY10 (74,885)

28 Site Specific Targeting

29 Site specific targeting General industry companies with 40 or more employees Establishes priorities for programmed inspections Based on prior year s illness and injury data submitted to OSHA from 80,000 employers at OSHA s direction

30 Proposed MSD Recordkeeping Requirement

31 Proposed MSD Recordkeeping Requirement OBE November 2, 2010 Resurrect ergonomics by the back door Would have added new column to OSHA 300 Log for MSD injuries Probably construed employer admission against interest Was potential penalty escalator (willful)

32 Administrative changes designed to increase OSHA penalties

33 Changes to current OSHA policy designed to increase penalties Effective: 10/01/10 Current penalty factors have been in place for 30 years and are considered by OSHA to be too low to deter violators Repeat violation period is extended from three to five years Penalties may be imposed for egregious violations on an individual as opposed to grouped basis

34 Changes to current OSHA policy designed to increase penalties Any employer who has been issued a high gravity serious, willful, repeat, or failure to abate citation within the previous five years will receive a 10% penalty increase up to statutory maximum Proposed penalties for serious violations will range from $3,000 to $7,000 (up from current $1,500 average)

35 Proposed Illness and Injury Prevention Program (i2p2)

36 Proposed Illness and Injury Prevention Program Proposed regulatory program announced 05/04/10 Intended to make 1989 voluntary OSHA guidelines mandatory Stakeholder meetings have been first step Not yet final

37 Proposed Illness and Injury Prevention Program Employers would be required to take steps to identify all hazards for all job activities in workplace on a job-by-job task-by-task basis and eliminate or control all hazards identified Employer would be required to identify all significant hazards even if no OSHA standard applies (as is currently implicitly required by the General Duty Clause)

38 Proposed Illness and Injury Prevention Program Significant employee involvement would likely be required both in setting up company programs and in evaluating their effectiveness Employees would thereby potentially gain a significant voice in the safety of their workplaces

39 Revised Noise Interpretation

40 Revised Noise Interpretation OBE November 2, 2010 Revised interpretation: Must use engineering and administrative controls before using Personal Protective Equipment ( PPE ) per regulation Prior and current interpretation: Use of PPE alone is ok if it reduces noise sufficiently

41 Proposed Statutory Changes To Increase Maximum OSHA Penalties

42 Proposed statutory changes to increase maximum penalties OBE November 2, 2010 Statutory maximum fines have not been raised in 40 years There is no present adjustment mechanism for inflation Bill was pending in last Congress which was known as the Protecting American Workers Act

43 Proposed statutory changes to raise maximum penalties Would have raised maximum serious penalty from $7,000 to $12,500 Would have raised maximum willful penalty from $70,000 to $250,000

44 FY09 And FY10 OSHA Enforcement Stats

45 Types of OSHA inspections Unprogrammed inspections address imminent hazards, fatalities, catastrophes, emergencies, whistle blowers, complaints, referrals and follow-up situations Programmed inspections are aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and/or illnesses in the past

46 OSHA inspection priorities 1. Imminent danger situations 2. Fatalities and catastrophes 3. Complaints 4. Referrals 5. Follow-ups 6. Programmed inspections

47 Inspections: FY06/FY10 FY06 FY10 Programmed 21,506 24,759 Un-programmed 17,073 16,234 Fatality 1, Complaints 7,376 8,027 Referrals 5,019 4,634 Other 3,597 3,558 Total 39,597 40,993

48 Inspections: percent change FY06/FY10 Total + 6.2% Programmed % Unprogrammed - 4.9% Fatality % Complaints + 8.8% Referrals - 7.7% Other - 1.1%

49 Cited violations: FY06/FY10 FY06 FY10 % change Willful 479 1, * Repeat 2,551 2, Serious 61,337 74, Other 19,246 17, Total 83,913 96, * Primarily associated with BP oil spill

50 Top ten cited OSHA violations during FY10 1. Scaffolding (Construction) 2. Fall protection (Construction) 3. Hazard communication (General) 4. Respiratory protection (General) 5. Ladders (Construction)

51 Top ten cited OSHA violations during FY Lock-out/tag out (General) 7. Electrical - wiring methods (General) 8. Powered industrial trucks (General) 9. Electrical General req. (General) 10.Machine guarding (General)

52 Focus of National and Local OSHA efforts

53 National OSHA s current focus Expand enforcement opportunities Increase numbers of inspections Increase size of penalties Increase employee involvement General deterrence Emphasize Hispanic worker protection

54 Local OSHA s past, present and probable future focus Get an employer s attention Cause the employer to fix the problem Cause the employer to make sure the same problem will not happen again Deter other employers from allowing the same problem to exist in their workplaces

55 The Best Business Defense Is.

56 Being focused and proactive

57 The best business defense is being focused and proactive Knowledge (legal requirements) Knowledge (company workplaces) Resources Equipment Training Supervision Discipline Recordkeeping

58 OSHA s 1989 Voluntary Company Health and Safety Guidelines

59 OSHA 1989 S&H Management Voluntary Guidelines 1989 Voluntary Guidelines + Management commitment Employee participation Worksite analysis Hazard prevention and control Safety and health training ( + Recordkeeping)

60 Management commitment Management commitment provides the motivating force and resources for organizing and controlling activities within an organization Management establishes provisions for systematic identification and abatement of general workplace hazards, specific job hazards and potential hazards that are reasonably foreseeable

61 Employee participation Employee involvement provides the means through which workers develop and/or express their own commitment to safety and health protection for themselves and their fellow workers

62 Worksite analysis Worksite analysis involves a variety of workplace analyses to identify not only existing hazards; but also conditions and operations where changes may occur to create hazards Effective management actively analyzes the work and the worksite to anticipate and prevent harmful occurrences

63 Hazard prevention and control Where feasible, hazards are prevented by effective design of the job or jobsite Where it is not feasible to eliminate hazards, they are controlled to prevent unsafe and unhealthful exposure Such controls are installed in a timely manner

64 Safety and health training Safety and health training addresses the S&H responsibilities of all personnel concerned with the site, whether salaried or hourly The extent of such training depends upon the size and complexity of the worksite and the nature of the hazards and potential hazards at the site

65 Recordkeeping National Recordkeeping emphasis program Training Medical Illness/injury log Incident investigations Internal inspections Corrective actions

66 Sources of OSHA Complaince Information

67 Sources of OSHA complaince information Regulations Interpretative letters Small business handbooks Fact sheets E-tools Inspector s guidance documents etc.

68 Sources of OSHA complaince information Connecticut OSHA National Safety Council Consultants Attorneys Internet (e.g. NIOSH, universities, etc. Other

69 Thank You!