Published on

1 Like
  • Be the first to comment

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide


  1. 1. Utah OSHA: Workplace Accidents,Investigations & CitationsMichael A. Zody
  2. 2. UOSH Authority Federal OSHA Law Allows for States to Enforce Utah is “State Plan” State = Utah OSHA (UOSH)is in the lead Utah Occupational Safety and Health Act, 34A-6-101, et seq. Utah Regulations at R614, Occupational Safetyand Health– General provisions and industry specific provisions– Incorporated federal standards
  3. 3. UOSH Statute General Duty Clause, 34A-6-201– “furnish [employment]…free from recognizedhazards that are causing or likely to causedeath or physical harm …and comply with [allapplicable OSHA laws].” Investigations, 34A-6-301 Citation and Enforcement, 34A-6-302, 303 Penalties, 34A-6-307
  4. 4. Investigation Authority 34A-6-301– can enter workplace at “reasonable times”and investigate, review records, etc….– if employer refuses, can get subpoena R614-1-7– Provides more detail on inspection processand rights / obligations of employer
  5. 5. Citations and Penalties Types and Penalties– “Other” (than serious), up to $7,000 (usually $500)– “Serious”: employer knowledge of condition andsubstantial possibility condition could result in deathor serious physical harm• $250 to $5,000– “Willful”• $5,000 to $70,000– “Repeat”• Up to $70,000– “Failure to abate or to post”, up to $7,000
  6. 6. UOSH Investigators Division Director (Louis M. Silva) Compliance Mgr (Eldon Tryon)– 23 total inspectors (up from 19)• 12 safety inspectors, reporting to SafetySupervisor (Dan King)• 11 Industrial Hygienists, reporting to HealthSupervisor (Holly Lawrence) UOSH looks to OSHA Field OperationsManual (FOM) for guidance
  7. 7. Inspection Triggers Imminent hazard 8 hour reporting– Fatalities or disabling, serious or significant injuries Employee complaints 7 day written reports (First Report, Form 122)– Injuries resulting in medical treatment, loss ofconsciousness, loss of work, restriction of work,transfer to another job Programmed high-hazard inspections
  8. 8. Before the Accident Have a great safety program, of course Train and Inspect Document it– Date of training/inspection, topics covered, whoparticipated– Even tailgates and seemingly informal training Safety Committees Audits– If you do audits, make sure you address action items– UOSH can ask for audits, unaddressed action items =willful violations
  9. 9. Accidents: What to Do? Obviously, priority one is emergencymedical treatment, safety for others Did it trigger 8 hour reporting?– What is serious or significant?– Consider erring on the side of reporting• avoids having an unhappy UOSH inspector showup after the fact, after an employee or other personreports it• avoids citation for failing to report and “piling on”citations
  10. 10. Accidents: What to Do? Duty to preserve evidence– “Tools, equipment, materials or other evidence that mightpertain to the cause of such accident [8 hour reporting]shall not be removed or destroyed until so authorized bythe Labor Commission or one of its Compliance Officers.”R614-1-5.C.2 Remote work sites create difficult preservationissues When making 8 hour report, confirm UOSHexpectations on preservation– Photos of accident scene, the equipment, etc…, preserverecords, preserve equipment
  11. 11. Accidents: What to Do Affirmative obligation to investigate all“work-related injuries” R614-1.C.3 For 8 hour reported injuries, expect aninvestigation and make sure safety filesare organized, ready for review– 300 forms, safety policies, relevant trainingrecords, etc….
  12. 12. Inspections Assign single point person to eachinspector, stay with inspector– Ask for credentials and areas inspector willcover– Refer questions to the point person, who canthen provide information to inspector– Employee representative can participate– Cooperate but do not volunteer or bring upmatters not covered by the question
  13. 13. Inspections Fully document inspector’s investigation– second person doing this, while point personfocuses on inspector– log movements, documents provided– photograph everything inspector photos– if providing anything of substance in writing,have legal counsel review beforehand– create a “mirror image” file
  14. 14. Inspections Interviews (avoid retaliation or obstruction)– Up to employees to agree to be interviewed– Employees should ask for copies ofstatements– Company can be present for managementinterviews• Take extensive notes of those you attend• Debrief those you do not attend immediately after ifpossible, take notes, focus on what employee toldinspector
  15. 15. Inspections Preserve trade secrets, secureconfidentiality Documentation allows legal counsel toassist during inspection, to understandwhere inspector is going, likely citations Inspectors vary in experience and quality– They can cite inapplicable standards
  16. 16. The Close-Out Inspector should identify likely citationsand evidence– Take detailed notes Opportunity to provide clarification orcorrect errors Limit participants, speak with one voice ifpossible– Avoid opening new areas of interest
  17. 17. The Close-Out Keep door open to providing follow-upinformation if you think inspector is wrong,or more information would defeat thecitation– Ask to continue the close-out or have asecond close-out
  18. 18. The Citation Must be issued within 6 months of allegedviolation Cover letter and forms give relevant information Must abate all those you do not contest Contest letter must be received by UOSH by 30thday Can request extension of abatement deadline Get legal counsel
  19. 19. The Informal Conference This is a settlement conference Does not delay 30 day contest deadline Ask for one and do your best to settle thecitations, no harm in doing so– Be respectful, pick your team carefully, no hot-heads Be prepared to show why the citation,classification and/or penalty amount is wrong
  20. 20. The Informal Conference Pontification about your outstanding safetyprogram, while okay and useful at times, is notwhat UOSH is wanting UOSH wants to see modified behavior, such asnew policies, new training, etc…. UOSH is generally willing to cut penalties by half– Explore getting credit for safety related expenditures,such as outside training services Getting “serious” citations downgraded to “other”can be hard
  21. 21. Settlement Agreements UOSH has standard Informal SettlementAgreement Have a lawyer review before you sign You typically are agreeing to the fact of at leastone citation, and it can form the basis of a repeatcitation UOSH will drop stock terms on occasion
  22. 22. Employee Misconduct Defense Employer is not liable where– Has established safety-related work rules– Adequately communicated the rules– Took steps to discover non-compliance– Effectively enforced the rule Tough defense to win, but it can be done– Consistent enforcement of rules is key– Supervisors cannot be looking the other way or letpeople slide on safety rules– Proof of internal inspections and follow-up helps
  23. 23. Hindsight is 20/20 Citation R614-1-5.D.3– Management shall inspect or designate acompetent person or persons to inspectfrequently for unsafe conditions and practices,defective equipment and materials and wheresuch conditions are found to take appropriatecorrective action immediately– Who does your inspections, how often, whatproof do you have and can you showcorrective action?
  24. 24. Advance Notice of Inspections It is a crime to give “advance notice of anyinspection” 34A-6-307(5)(b) Big Branch Mine Indictment– Alleges mine security guards were trained to,and did, give warnings over an internal radiochannel upon arrival of MSHA inspectors