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![General Duty Clause
• Section 5(a)(1)
• "a place of
employment which is
free from recognized
hazards that are
causing or are likely to
cause death or serious
physical harm to [its]
employees."
Not wearing seatbelts is a
common citation under the
general duty clause.](https://image.slidesharecdn.com/gi2013introductiontosafety-140701064051-phpapp01/85/Gi2013-introduction-to-safety-18-320.jpg)
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Gi2013 introduction to safety
- 1.
- 2. Common Law 1800s •Employee had to prove three area under Common Law • Worker accepted risk of employment • Injury was a consequence of the job • Worker had contributory negligence • Burden of proof on the injured
- 3. Safety Origins • 1877,the state of Massachusetts passed a law requiring guarding for dangerous machinery, and took authority for enforcement of factory inspection programs.
- 4. Safety Origins • 1884 PennsylvaniaMine Safety Act (PMSA) was passed into law.
- 5. Worker Compensation • 1902Maryland first workers' compensation law. • 1904 US Supreme Court Overturns MA law • 1916 the Supreme Court upheld the constitutionality of state workers' compensation laws.
- 6. Safety Organizations • 1896NFPA • 1911 ASSE • 1911 ASME for Boilers and Elevators • 1913 National Safety Council • 1918 ANSI
- 7. The Jungle • 1906Upton Sinclair • “Let a man so much as scrape his finger pushing a truck in the pickle rooms, and he might have a sore that would put him out of the world; all the joints in his fingers might be eaten by the acid, one by one. “
- 8. Cherry Coal MineDisaster • November 13, 1909 • 259 Died • Hay bales sent down to feed mules caught fire from burning oil from kerosene torch. • 21 men survived in a pocket 500 feet underground and were rescued after 8 days. • Outcry over tragedy lead to fire safety rules for mines and the Illinois Liabilty Act which lead later to the IL Worker Compensation Act.
- 9. Steel Industry • From1906-1994, 506 workers have been killed at U.S. Steel Gary Works.
- 10. Triangle Shirt WaistFire • March 25, 1911 • 146 died • Door to an exit opened inward • Outside stairway collapse • Fire hoses went only to 7th floor Exit doors may have been locked
- 11. Walsh-Healy • Federal contractsmust be fulfilled in a healthful and safe working environment. • “blacklisted" from federal contracts for 3 years. • 1969 incorporated ACGIH’s TLV’s into the act. (Silica, Absestos were examples) 40 hour work week, over time, minimum wage, ban on child labor were major provisions
- 12. Texas City • April16, 1947 • Cargo Ship of Ammonium Nitrate Exploded • Neighboring Monsanto plant caught fire • 561 died
- 13. Safety Laws • 1952Coal Mine Safety Act • 1966, the Metal and Nonmetallic Mines Safety Act • 1969, the Construction Safety Act • 1970 OSHA
- 14. Industrial Safety 1969 •14,500 American workers were killed annually • Safety and health laws varied state to state
- 15. OSHA • Department ofLabor to enforce Safety and Health laws • NIOSH • OSHRC • Osha Training Institute • 56 million workers at 3.5 million workplaces in 1971 This Act created OSHA, the agency, which formally came into being on April 28, 1971
- 18. General Duty Clause •Section 5(a)(1) • "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees." Not wearing seatbelts is a common citation under the general duty clause.
- 19. 1970’s • Permissible exposure limitsfor more than 400 toxic substances including specific standard for asbestos • State plans approved • IL give back OSHA enforcement -1975 • Several Court Challenges
- 20. Barlow -1978 • Warrantrequirements of the Fourth Amendment were applicable to OSHA inspections per US Supreme Court • Probable cause in the criminal law sense is not required. • Anticipatory warrant procedures used if repeat requests. Barlow ran electrical and plumbing installation business in Idaho.
- 21. Whirlpool - 1980 •1974 case - The two workers were told to go out on a screen 20 feet above the floor to retrieve small appliance parts which had fallen from a conveyor belt system above. • Workers sent home and docked 6 hours pay. • Workers can refuse if reasonable apprehension that death or serious injury or illness might occur as a result of performing the work
- 22. AFL-CIO v. AmericanPetroleum Institute -1980 • Supreme Court decision vacates OSHA's benzene standard, establishing the principle that OSHA standards must address and reduce "significant risks" to workers. Benzene was used in gasoline, paints, and many other chemicals
- 23. American Textile -1981 •Supreme court ruled in favor of worker’s health standard that was more stringent yet feasible vs. one that has more favorable cost-benefit analysis It was estimated that 1 in 12 textile workers had Byssinosis, an asthma-like condition in the 1970s.
- 24. 1980’s • Access tomedical and exposure records • Hazard communication • Updated asbestos • Ethylene oxide, formaldehyde, and benzene. • Hazardous waste operations and emergency response • Lockout/tagout of hazardous energy sources. • Egregious 1984 Bhopal Explosion kills 2000+ OSHA Starts CHEMSEP
- 25. 1990’s • Confined Space •Respirators • Personal Protective Equipment • Process Safety • Forklift Training • www.osha.gov •Blood-borne Pathogens Standard started in this decade
- 26. Emphasis Programs • Lead •Silica • Forklift • AMPUTATE • Canning • High Hazard industries
- 27. Types of Inspections •Imminent Danger • Fatalities 800-321- OSHA within 8 hours • Catastrophes – 3 or more • Complaints – 5 days • Referrals • General Schedule • Follow Up Confined spaces could be imminently dangerous.
- 28. Inspection Process • Openingconference • Records and written safety program review • Workplace tour • Closing conference • Six month to complete inspection and issue citations.
- 29. Employer Rights • Seeidentification • Know reason for inspection • Accompany during inspection • Take pictures • Know what hazards found A CSHO checking for live parts.
- 30. Employee Rights • Employeeshave the right to: – A safe and healthful workplace – Know about hazardous chemicals – Information about injuries and illnesses in your workplace – Complain or request hazard correction from employer – Training – Hazard exposure and medical records – File a complaint with OSHA – Participate in an OSHA inspection – Be free from retaliation for exercising safety and health rights
- 31. Employee Rights • 11(c)protection • Contest abatement dates • Informal conferences • Records 300/301 • Private interviews • Right to a rep in an interview
- 32. Access to MedicalRecords • 1910.1020: right to examine & copy records • Examples of toxic substances and harmful physical agents are: – Metals and dusts, such as, lead, cadmium, and silica. – Biological agents, such as bacteria, viruses, and fungi. – Physical stress, such as noise, heat, cold, vibration, repetitive motion, and ionizing and non-ionizing radiation.
- 33. Complaints • Workers mayfile a complaint with OSHA if they believe a violation of a safety or health standard, or an imminent danger situation, exists in the workplace. • Workers may request that their name not be revealed to the employer. • If a worker files a complaint, they have the right to find out OSHA’s action on the complaint and request a review if an inspection is not made.
- 34. Employer Obligations • Providea workplace free from recognized hazards and comply with OSHA standards • Provide training required by OSHA standards • Keep records of injuries and illnesses • Provide medical exams when required by OSHA standards and provide workers access to their exposure and medical records • Not discriminate against workers who exercise their rights under the Act (Section 11(c)) • Post OSHA citations and abatement verification notices • Provide and pay for PPE
- 35. Recordkeeping Employers must: Reporteach worker death Report each incident that hospitalizes 3 or more workers Maintain injury & illness records Inform workers how to report an injury or illness to the employer Make records available to workers Allow OSHA access to records Post annual summary of injuries & illnesses
- 36. Violation Types • Serious– 7k • Willful – 70k • Repeat – 70k • Other – 7k • Failure to Abate -7k a day Unguarded machines are top ten cited hazard
- 37. Elements of aViolation • Serious Hazard • Applicable Standard • Employee Exposure • Employer Knowledge of Condition
- 38. Appeals Process • InformalConference – 15 days • Notice of Contest – 15 days • Administrative Law Judge • OSHA Review Commission • US Appeals Court • Supreme Court
- 39. Contacting OSHA • Theydo not ask names • No caller ID • No follow-up on website hits • www.osha.gov
- 40. New DOL HeadNominated • From DOJ • MD Secretary of Labor 2007-2009 • Expected strong positions in Wage Theft, Apprenticeship Programs, and Whistleblowers • Sequestration will occupy first few months Thomas Perez
- 41. Sequestration? Sequestration DOL cut 7.8-8.2%? Continuing Resolutions Furloughs? IMPACT:Training cut to minimum Less Travel.President’s Budget for 2013 calls for consolidation Regions 9 and 10 Regions 7 and 8 Regions 1 and 2
- 42. Personnel Development • OSHACompliance Officers are changing over – Lot of retirements in the last several years – Averaging a loss of 60 to 80 compliance officers per year over each of the last five years – Most of the senior leadership (SES and GS- 15s) can or will retire within the next five years
- 43. OSHA Leadership toStay • This is a first in the history of OSHA. • February 2013 • We've launched the new Severe Violator Enforcement Program to target the worst of the worst violators. • We've issued a record number of significant and egregious enforcement cases- including the largest fine in OSHA history. • We've issued three major standards (Cranes, GHS, Shipyards) . We've strengthened the protection of whistleblowers. And we've launched several new National, Regional and Local Emphasis inspection programs.
- 44. Dr. Michaels –August 2013 • “the agency intends to modernize its Process Safety Management Standard to address chemical hazards in an effort to improve refinery worker safety and decrease the likelihood of catastrophic events, OSHA administrator David Michaels said during an Aug. 6 webchat.” • The Small Business Regulatory Enforcement Fairness Act review of the Injury and Illness Prevention Program Standard was expected to begin “soon.” Management Commitment Employee Training Job Hazard Analysis Hazard Controls IH Survey Employee Participation Accident Investigation Compliance Audits
- 45. OSHA In Chicagoland •3 offices – Des Plaines, • Aurora, Calumet City • 2200 inspections total ~120 AMPUTATE NEP ~120 PIV LEP ~50 LEAD NEP ~40 SILICA NEP ~15 HEXCHROME ~15 COMDUST LEP ~15 GRAIN LEP ~50 LADDER LEP (new) ~15 FLAVORINGS NEP ~15 RECORDKEEPING NEP
- 46. New Leadership inRegion V • Nick Walters • 20 Years Experience • Two Criminal Convictions Won • Lockout Expert • Exceptional fatality investigator • Auditor • Area Director • National Office Enforcement Program Many Media Events are Straining OSHA Resources
- 47. Explosions 2013 • SouthernIL plant • Cary Paint Plant • Pekin Bottling Plant • Granite City Steel Plant • Plastics Plant (OH) • Sheboygan Chemical Plant (WI) • Martinville IL Sump explosion • “The explosion occurred about 8:15 a.m. inside what Dunn described as a paint booth.”
- 48. Confined Space 2013 •Grain Bin Decatur • Wheeling Tank • Paper Mill Vat in MI • Rescue Provisions are being targeted • Too often entry is contracted out with the rescues not planned.
- 49. Temporary Employee • CarlosCenteno Death • NPR, Mother Jones, Center to Protect Public Integrity • 50% of top ten employers with amputations • Dr. Michaels – Feb 2013 • Employer indifference to the working conditions of many contingent workers is simply unacceptable. • While some employers may believe they are not responsible for temporary workers, OSHA requires that employers ensure the health and safety of all workers under their supervision and control. • We need to make it clear to supervisors, staffing and temp agencies, and other employers that even if workers are temporary, they are entitled to the same safety and health rights and should be treated no differently from other workers.
- 50. Reg Agenda • RegardingOSHA standards, Michaels told August 6, 2013 webchat commenters a notice of proposed rulemaking updating the Silica Standard would be issued in the “near future,” • Construction workers in confined spaces. • Slips, Trips, and Fall Prevention : New technologies and procedures have become available to protect employees from these hazards. OSHA has been working to update these rules to reflect current technology. • Electrical Power Transmission.
- 51. A Strong EnforcementStart Penalty State Major Issues •$126,000 OH Lead, PPE •$72,800 OH Hex Chrome •$82,170 IL Hearing Conservation Program, Welding, respirators •$51,190 WI PPE, Hand Protection, face protection •$75,000 IL Saws and Machine guarding •$142,100 IL Confined Spaces •$47,000 FL Fall Protection concrete job •$196,000 IL Lead in masonry sandblasting •$56,320 WI Foundry, guards, grinding, electrical •$545,000 OH PSM, chemical release. •$114,000 IL Lockout in Meatpacking •$63,000 OH Conveyor death •$170,500 OH Fall protection, guarding, Steel Mill •$115,000 OH Trenching •$60,000 IL PPE, fitness facility •$105,000 WI Crane, fatality •$56,880 OH Noise, foundry •$44,000 OH Forklift, fall protection’ •$98,000 OH Forklift, cranes, •$41,200 IL PPE, acid •$54,000 IL PSM, Food
- 52. Other Trends • Employeeby Employee Citations – PPE Standard – LOTO procedures • Enhanced Use of General Duty Clause – Combustible Dust – Ergonomics – Workplace Violence – New chemicals (not listed on Z tables) – Arc Flash – Arc Blast – Heat Illness – Fall Protection
- 53. General Duty Clause •April 2013 • WI • $19,250 Repeat • OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that: • (a) Employees handling refractory ceramic fiber and performing work such as mixing, were exposed to harmful levels of airborne refractory ceramic fiber measured as high as 0.64 fibers per cubic centimeter of air and were exposed to the hazards of lung cancer, mesothelioma, and other adverse respiratory health effects including irritation and compromised pulmonary function.
- 54. Recordkeeping Scope of Documentsfor Recordkeeping Inspection • OSHA Forms 300, 300A and 301 • Medical records AT the clinic you use • Worker’s compensation records • Insurance records • Payroll/absentee records • Company safety incident reports • Company first aid logs • Disciplinary records relating to injuries and illness 54 | © 2013 Seyfarth Shaw LLP
- 55. DART rate • 1.8DART in 2011 • 3.5 TCIR in 2011 • Days Away Restricted Transfer • Total Incident Case Rate • #cases x 200,000/#hours
- 56. Incentives • Evaluate policy.Address issues. • Does it encourage employees to underreport in exchange for prizes or other rewards? • Are Employees Being Disciplined for getting hurt? • Conduct employee interviews focused on whether employees have been trained to report injuries or illnesses or discouraged to report. • OSHA favors rewards for reporting hazardous conditions, for recommendations for safety improvements, participation in safety committees, etc.)
- 57. Ergonomics OSHA has announcedthat it will once again begin enforcing ergonomics violations through the General Duty clause, Section 5(a)(1) General Criteria: • Conduct review of OSHA Logs, worker’s compensation, first aid to identify nature of prior ergonomic-related injuries/illnesses • Perform individual job assessments for ergonomic stressors • Develop engineering or administrative controls to address stressors • Conduct employee training on signs and symptoms of cumulative trauma disorders (CTD’s) and establish employee reporting procedure • Develop medical surveillance program to monitor CTD’s and provide treatment • Enforce use of engineering or administrative controls through discipline • Maintain appropriate OSHA recordkeeping, e.g., OSHA 300 Log and supporting documentation
- 58. SVEP Criteria > 1W, R or FTA based on a serious violation related to a death of an employee or three or more hospitalizations > 2 W, R or FTA based on high gravity serious violations related to a High-Emphasis Hazard > 3 W, R or FTA based on high gravity serious violations related to hazards due to the potential release of a highly hazardous chemical, as defined in the PSM standard Any Egregious Case FATALITY NON- FATALITY NON- FATALITY Potential for release of highly hazardous chemicals (PSM) EGREGIOU S
- 59. Employee Misconduct Defense •More important than ever to establish strong unavoidable employee misconduct defense. • All four elements required (1) Program for the specific hazard, e.g. fall, electrical, lead, asbestos, cadmium, forklift (2) Employee training (documentation) (3) Prior enforcement (disciplinary records) (4) No reasonable opportunity for supervisor to identify and correct hazard
- 60. FY 2008 –FY 2012est Inspections Conducted
- 61. FY 2008 –FY 2012 % Programmed vs. % Unprogrammed
- 62. FY 2008 –FY 2012 % Complaint Inspections
- 63. FY 2008 –FY 2012 % Follow-Up Inspections
- 64. FY 2008 –FY 2012 % Inspections In-Compliance
- 65. FY 2008 –FY 2012 % Total Violations Issued As Serious
- 66. FY 2008 –FY 2012 % NIC Inspections With Only Other-Than- Serious Violations Cited
- 67. FY 2008 –FY 2012 Average Penalty Per Serious Violation (Private Sector)
- 68. Why the $Jump? • April 22, 2010 OSHA issues revised penalty policy • OSHA believes penalties are too low to deter violations • Under revised policy: 1. OSHA will increase base penalty by 10% for any history of high- gravity serious, willful and repeat violations over the last five years 2. At informal conference area directors cannot solely: • Reduce or withdraw willful or repeat citations • Reduce the penalty by more than 30% Unless Sweeteners 1. Look back 5 years to employer citation history for Repeat citations (previously 3 years)
- 69. FY 2008 –FY 2012 % Construction Inspections
- 70. FY 2008 –FY 2012est Significant Cases Note: FY11 & FY12 figures include cases under OSHA’s revised significant case procedures and new penalty
- 71. FY 2008 –FY 2012 Average Hours Per Safety Inspection
- 72. FY 2008 –FY 2012 Average Hours Per Health Inspection
- 73. FY 2008 –FY 2012 Fatality Investigations *Includes some catastrophes which, due to unfinalized OIS reports, cannot yet be separated out
- 74. Citation Avoidance Ensure andtraining and programs are up to date –GHS Program, –Lock Out Tag Out –Confined Space Entry –Blood Borne Pathogen –Emergency Action Plan, –Powered Industrial Truck –Respiratory Protection –Hot Works –Process Safety Management Program
- 75. Citation Avoidance • Auditsneed to complete Lockout: annual periodic inspection of energy control procedures is complete and documented; Confined Space: annual rescue training for confined space rescue employees; Forklifts: conduct 3 year fork truck driver recertification; Fire: annual fire extinguisher training, etc. • Do you have software in place that tracks training deadlines?
- 76. Citation Avoidance • ConductInternal Site Inspections • Understand that internal reviews are discoverable by OSHA and others • Be prepared to promptly fix and/or address what you find • Documenting Corrective Action/Close Out is as important as finding action items
- 77. Citation Avoidance • UseOutside Set of Eyes for a fresh perspective • Know and use your own OSHA history – Plant specific citations – Company wide citations • Large employers beware. OSHA perceives a corporate disconnect
- 78. External Audits OSHA cansubpoena these audits. Two Large Penalty cases used the audit findings against the company. – Outside audits are not privileged unless directed by a counsel – Company and Outside Counsel can retain consultants to create arguments the audit may not be discovered by OSHA etc.
- 79. Plain View Doctrine –Compliance officer can issue citations for any violations in “plain view.” – If Compliance Officer doesn’t see it he/she can’t cite you for it.
- 80. Tips during Inspections •Immediately Correct Unsafe Conditions Identified by The Compliance Officer Without Admitting That The Condition Constitutes a Violation – May avoid the citation – May lessen the classification or penalty of a citation Letting a violation exist for weeks during an OSHA inspection can be used to show duration.
- 81. OSHA Interviews – Non-Management Interviews •Employee rights to Union or other Representative • “Tell the truth” – Management Interview • Right To Company Rep/Counsel – Avoid the “casual” interview – Avoid Saying “I Don’t Know” Remember: Everything is on the record. Do not engage in idle conversation concerning safety
- 82. Volks Decision -2012 • In 2006, OSHA issued a citation alleging that Volks had failed as long ago as 2002 to record injuries on its Form 300 injury logs and to create Form 301 injury reports. • Volks claimed that the citations were untimely because the Occupational Safety and Health Act has a 6-month statute of limitations. “No citation may be issued … after the expiration of six months following the occurrence of any violation.”
- 83. All Crane Decision- 2012 • Appeals Court ruled that an employee does not actually need to be exposed to a hazard before an employer can be found in violation of an OSHA standard. • Rather, the Sixth Circuit held that the fact that an employee could have been exposed to a hazard is enough to find an employer in violation of an OSHA standard. OSHA needs four elements to cite: -Hazard that could cause harm -Employee Exposure -Employer Knowledge of Condition
- 84. Comtran August 2013 •Comtran • Big loss to OSHA in court • " The court first determined that the foreman knew or should have known about his own misconduct, notwithstanding his testimony that he was not aware of the excavation and cave-in hazards because he became "lost" in his work“ • Work Rule • Inspection • Training • Enforcement • The analysis must be different when the violation at issue is committed by only a single supervisor. • Six foot deep hole with 4 feet of spoil at edge.
- 85. BP Husky 2013 •41 Willfuls vacated • “ Because the AVD improperly imposes a requirement on employers not found in the cited standards, the Secretary failed to establish BPP and BP-Husky were not in compliance with the appropriate RAGAGEP.” • 1) How many accidents resulted not complying with the consensus standard. • 2) What are other companies that are complying with the rule. • 3) What is the company's specific knowledge of the rule • 4) Why are they not complying to the rule?
- 86. FY 2012 Top 10Most Cited Standards (General Industry) 1. Hazard Communication 2. Respiratory Protection 3. Electrical, Wiring Methods 4. Powered Industrial Trucks 5. Lockout/Tagout 6. Electrical, General Requirements 7. Machine Guarding 8. Personal Protective Equipment 9. Guarding Floor & Wall Openings & Holes 10. Bloodborne Pathogens
- 87. Quick Quiz • Howmuch can a Willful Violation be? ____ • Informal Conferences can be requested within ___ days of receiving a citation. • OSHA must issue a citation within __ months of its opening conference. • Catastrophes of ___ or more hospitalized must be reported to OSHA within ____ hours. • What is the address for the OSHA web site? _____________
Editor's Notes
- #56 http://www.bls.gov/news.release/archives/osh_10252012.htm
- #61 IMIS and OIS
- #62 IMIS and OIS
- #63 IMIS and OIS
- #64 IMIS and OIS
- #65 IMIS only
- #66 IMIS and OIS
- #67 IMIS only
- #68 IMIS only
- #70 IMIS and OIS
- #71 both
- #72 IMIS only
- #73 IMIS only
- #74 FY 2011: IMIS only FY 2012: IMIS and OIS
- #85 http://www.mondaq.com/unitedstates/x/256444/Health+Safety/When+Knowing+Is+No+Sure+Thing+11th+Circuit+Requires+OSHA+To+Dig+Deeper+Before+Imputing+Supervisors+Misconduct+To+Employer
- #87 IMIS only