More Related Content
What's hot
What's hot (20)
Viewers also liked
Viewers also liked (15)
Similar to How To Survive An OSHA Audit
Similar to How To Survive An OSHA Audit (20)
Recently uploaded
Recently uploaded (20)
How To Survive An OSHA Audit
- 1. How to Survive an OSHA Audit Presented By: Jim Rhoad
- 2. Inspection Priorities • Imminent danger • Catastrophes & Fatal Accidents • Worker complaints and referrals • Targeted inspections - high injury/illness rates, severe violators • Follow-up inspections
- 4. Catastrophes & Fatal Accidents
- 5. Worker complaints and referrals • Disgruntled employees • Legitimate complaints • Union organizers • Whistleblower Investigator
- 6. Targeted inspections - high injury/illness rates, severe violators • Targeted Industry • High Incident and Dart Rate • Severe Violators
- 7. Follow-up inspections • Post the citation as required? • Correct the violations as required? • Protected employees adequately?
- 8. Inspection Process by Compliance Officer • Prior to inspection • Preparing for the inspection
- 9. THE OSHA AUDIT: 4 Parts 1. Knock at the Door 2. The opening conference 3. The walk- around/inspection 4. The closing conference
- 10. The Audit: 1 - Knock at the Door Hello I am from OSHA and I am here to help you… • Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO): – A determination if you will ask for a warrant – A form to document what occurs during the inspection – All pertinent documentation such as written safety programs, training records, inspection records, etc.
- 11. Tip • We recommend you do not require the CO to obtain a warrant before entry unless you need to gain time, such as when a manager or counsel needs to be present. It is your legal right to ask for a warrant but this might trigger a stricter audit (and raise possible red flags)
- 12. The Audit: 1 - Knock at the Door • Escort Compliance officer to waiting area while you gather your team and documents. • An OSHA compliance officer carries U.S. Department of Labor credentials – ask to see them.
- 13. Tip • Have a form available to record CO information and what transpired during audit
- 14. Audit: 2 - The opening conference • In the opening conference, the compliance officer (CO) explains – why the establishment was selected. – the purpose of the visit – the scope of the inspection – the standards that apply. – The employer will be given a copy of any employee complaint that may be involved. • The employer is asked to select an employee representative to accompany the compliance officer during the inspection.
- 15. Tip Treat the CO in a professional fashion, coordinate with on-site contractors and vendors and bring up any trade secret issues you may have.
- 16. Audit: 2 - The opening conference • If there is a plant safety committee, the employee members of the committee will designate the employee representative (in the absence of a recognized representative) • Where neither employee group exists, the employee representative may be selected by the employees themselves, – or the compliance officer will determine if any employee suitably represents the interest of other employees.
- 17. Tip Create a written policy for OSHA inspections that covers: 1. who will represent the company and in case of absence who will be replacement 2. a statement on warrantless OSHA searches (if needed)
- 18. Audit: 3 - The walk-around/inspection • Inspecting work areas for compliance with OSHA standards – Have company representation with CO • CO will point out to the employer any unsafe or unhealthful working conditions observed – Take notes and have fix violations if possible – If CO takes a picture you take the same picture • Trade secrets observed by the compliance officer must and will be kept confidential. $1,000 fine and/or one year in jail for releases confidential information – The employer may require that the employee representative have a security clearance for any area in question.
- 19. Audit: 3 - The walk-around/inspection • The CO may want to interview employees. Make sure to schedule these interviews away from your work area. • It’s up to hourly employees if they want company representation during the interview. Advise the employee of his/her rights, your appreciation of their cooperation, and to tell the truth.
- 20. Tip Make sure you have an employee representative attend the entire inspection and take accurate notes on areas reviewed and all discussions and comments from the CO, as well as any photos, videos. • This will assist your attorney in contesting a citation
- 21. Audit: 3 - The walk-around/inspection • Here are some other items to have prepared prior to inspection: – Documented training logs/records – Recordkeeping – Equipment inspection records – Safety and health Program (written) • integral part of any OSHA inspection – Review of insurance and third party audits – Hazard assessment and abatement – Review of previous audits and citations. – Copy of the totals from the last page of OSHA No. 300 has been posted – OSHA poster is prominently displayed
- 22. Tip • Create a Self Inspection checklist for employees to complete weekly or monthly.
- 23. Audit: 3 - The walk-around/inspection Record Keeping & Safety Plan: The following standards require a written plan or program in place where applicable to the business: Emergency Action Plan 1910.38 Fall Protection 1926.501 Hazard Communication 1910.120 Respirator Program 1910.134 Permit-Required Confined Space Program 1910.146 Lockout/Tagout 1910.147 Personal Protective Equipment 1910.1632 Powered Industrial Trucks 1910.178 Electric Power Generation, Transmission and Distribution 1910.269 Electrical Safety-Related Work Practices 1910.333 Bloodborne Pathogens: Exposure Control Plan 1910.1030 Hazard Communication Program 1910.1200 Subpart Z–Specific Chemical Substances 1910.1000 to 1910.1450 Appendix B Posting and Citations Job Safety and Health Poster Form 3165 Accidents, Injuries and Deaths 300 Log
- 24. Tip • Understand the law (consult 29 CFR 1910, general industry standards) • Have documents easily accessible and written – In OSHA’s mind if its not documented it probably didn’t happen.
- 25. Audit: 4 - The closing conference • The CO will review any apparent violations and discuss possible methods for correcting them. – If possible correct them while he is there • The CO will explain that the violations found may result in a citation and a possible financial penalty, then describe the employer’s rights and answer all questions.
- 26. Audit: 4 - The closing conference • Citations are usually prepared at the local OSHA office and mailed to the employer via certified mail. OSHA has up to six months to send a Notice of Penalty. Employers have 15 working days upon receipt to file an intention to contest OSHA citations, and/or to request an informal conference with the area director to discuss any citations issued. • The citations include: – A description “with particularity “of the violation – The proposed penalty if any – The date by which the hazard must be corrected
- 27. Tip Remember, this is not a time for debate. The law requires OSHA to issue citations for safety and health standards violations.
- 28. Citations • Other Than Serious Violation • Serious Violation • Willful Violation • Repeated Violation • Failure to Abate Prior Violation • De Minimis Violation
- 29. Other Than Serious Violation • Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm
- 30. Serious Violation A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.
- 31. Willful Violation A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.
- 32. Repeated Violation • A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.
- 33. Failure to Abate Prior Violation Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
- 34. De Minimis Violation De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.
- 35. Citations • The employer will receive citations and notices of proposed penalties by certified mail. – employer must post a copy of each citation at or near the place a violation occurred, for three days or until the violation is abated, whichever is longer. • Common causes to dispute citations include: – The citation is false – The citation’s dollar penalty is excessive – You disagree with the citation’s contention that the danger was real, serious, and that an accident was likely to occur – The contention that you are responsible for causing the unsafe conditions
- 37. Contesting Citation: Un Preventable Employee Misconduct • Shifting liability back to employee. • The premise is that is would be unfair to cite the employer who has promoted safety, trained his employees for something that could not be prevented. (essentially what an accident is)
- 38. Contesting Citation: The OSHA Field Operations Manual says to prevail on the affirmative defense of “Unpreventable Employee Misconduct –the employer must show that it…
- 39. Employee Misconduct 1. Established a work rule adequate to prevent the violation (Safety Policy) 2. Effectively communicated the rule to employees; (Training, safety committees, signed agendas or quizzes) 3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and (Audits dates and findings) 4. Established effective enforcement of the rule when violations are discovered (discipline policy in handbook and document discipline even verbal)
- 40. 1- Create a written Safety Policy • Must address the hazards most frequently encountered by your employees. • Work rules must be as strict or stricter than the OSHA standards. • Work rules need to be in writing. • Work rules should be distributed to all – Have employees sign and agree (Handbook and Safety Policy) • General Standards in Safety Policy
- 41. 2) Communicate the rules to your employees • Ensure new employees are properly trained prior to being sent to work. – Examine your orientation program: New Hire and Worker Transfer – No “grace period” granted by OSHA for new employees. – Signed Forms for safety policy and handbook • Continued training-Risk Management – Videos, personal reviews or work – Educate employee regarding most frequently encountered hazards – Industry specific risks – Review portions of work rules and OSHA standards – Distribute hand-outs
- 42. 2) Communicate the rules to your employees • Maintain documentation – date, names of individuals in attendance, trainer, translator, detail specific topics covered, job site or location of class – Hold class in Spanish as well as English • Safety Committees – Management should run or be involved – maintain strict records of meeting agendas, sign in sheet and subject matters – Discipline supervisor for failure to hold meeting or for failure to return documentation in timely manner • Periodically use guest speaker or do demonstration to enforce safety – Insurance Agent, Risk Manager – Other Vendor- Fleet Safety, Hi-Los, Wellness Coaches, OSHA Consultants
- 43. 3) Take Steps to Discover Violations • Safety inspections, walkthroughs, audits – Detect hazard • written up hazards condition and abatement taken – Detect work rule violation • write up employee(s) • Use other resources to do periodic safety inspections – Company safety representative – Top company management officials – Worker compensation carrier – General liability carrier – Outside consultant/auditor – Sub-contractor – Question laborers
- 44. 4. Discipline: Enforce and document violations • Does your company have a disciplinary system? – Is it in writing? – Is it in or referenced in the work rules? • Do the employees know they can be disciplined for violation of work rules? • Do the supervisors know they can, and will be disciplined for failing to discipline an employee for violating the work rules? • Do you document verbal warnings? • Do you track discipline? • Have you suspended or terminated an employee for violating your safety rules? • Are employees aware that other employees have been disciplined for violating work rules? • Your safety program must enforce the safety rules – Document discipline
- 45. Prove the Un Preventable Employee Misconduct QUESTION: OSHA cited my company because an employee was found not wearing safety glasses. There is no dispute the employee was not wearing the glasses, or that it was required (it is), but the employee was violating our strict safety glass policy. Do we have any defenses? To have evidence to prove the Un Preventable Employee Misconduct defense you need to demonstrate that: 1. Employer has an established PPE policy that addresses the type of PPE for which the employer was cited; 2. All employees (including the employee who was found not wearing the PPE) have been trained on the PPE policy; 3. Employer conducts regular audits of the workplace to ensure employees are following the PPE policy 4. Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules).
- 46. Roofer - FALL • Accident prevention program – not developed • No person certified in first aid • Inadequate fall protection • Fall protection training not certified
- 47. Laborer – CAUGHT IN • Accident prevention program – not properly maintained • PPE – no hard hats in use • Excavated trenching & shoring – excavated material stored at edge • Excavated trenching & shoring – sides not sloped or supported
- 48. Pipefitter - EXPLOSION • Accident prevention program – not coordinated with employees • Welding/cutting in an area that contains explosive atmosphere • Atmosphere not tested • Cracks/holes not covered were sparks could pass • And more
- 49. Poor Safety has Consequences Meet Kristi Fries • Lost her arms in 110 ton press • Employer knew press was faulty • She sued and won large settlement • Fined $360,000 by OSHA • Company went out of business costing 50 families their jobs
Editor's Notes
- Hello everyone…my name is Randy Boss and I’m here with one of my team members Jim Rhoad. We are Outsource Risk Managers at Ottawa Kent Insurance located in West Michigan. “We help companies manage risk not just buy insurance.” We are going to discuss “How to Avoid an OSHA Audit” First of all…There is no way to avoid an OSHA audit, much like there is no way to avoid having a root canal if evidence shows you need one. But similarities aside, you can lessen the pain by being well-prepared.
- So what can you do to prepare? First let’s review inspection priorities. They are… Imminent danger Catastrophes & Fatal Accidents Catastrophes: hospitalization of three or more employees Worker complaints and referrals OSHA will maintain confidentiality if requested “Sometimes this is a parting gift from a disgruntled employee” Targeted inspections - high injury/illness rates, severe violators Follow-up inspections Notification of Failure to Abate “checking to see if hazards identified have been abated”
- Imminent danger situations are given top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement procedures. An example would be an unprotected hole in a floor or employees working in a trench unprotected.
- Catastrophes & Fatal Accidents Catastrophes: hospitalization of three or more employees Here is a “catastrophe” from Michigan a couple weeks ago: Six construction workers were hurt when a scaffold collapsed at the Courtyard by Marriott hotel under construction. While this is still under investigation it appears that scaffold was wrapped in plastic, wasn’t secured to the building and wind gust between 40-50 miles per hour cause the collapse. Fatal: A young man was killed by a steel beam that fell over while he was attempting to rig it to be moved by a crane. Picture of his co-workers that witnessed the accident.
- Disgruntled employees – company we just started working with had an a parting gift from a disgruntled employee. Cost them several thousand dollars in fines and several hours to document their abatement efforts. Legitimate complaints – employee repeatedly reports a safety hazard to his/her supervisor and supervisor does nothing. Union organizers – they often target companies with poor safety to drive a wedge between employees and management by giving employees the impression management doesn’t care about them and their families. Whistleblower Investigator – works another department in gov’t and reports to OSHA
- Targeted Industry – OSHA has a list and your industry may be on it…Home construction… High Incident and Dart Rate compared to others in your industry - What are Incidence Rates? The incidence rate is a trending number based on your Injury & Illness rates if you had worked 200,000 hours. Why does OSHA use the 200,000 hour benchmark? Quite simply, 200,000 hours are the hours worked by 100 employees, averaging 40 hours per week over a 50 week span (two weeks taken away for holidays). If the total hours your employees worked is less than 200,000 or more than 200,000 it doesn't matter, we use this number to establish a trending benchmark. What is a DART Rate? The DART rate stands for "Days Away, Restrictions and Transfers". This number is also based on trending over 200,000 hours but its not based on total injuries. Its based only on those injuries and illnesses severe enough to warrant "Days Away, Restrictions and Transfers". As a general rule of thumb, you want to have a lower DART rate than Incidence rate. Severe Violators
- If you receive a citation, a follow-up inspection may be conducted to verify that you have done the following: Posted the citation as required, Corrected the violations as required in the citation, and/or Protected employees adequately and made appropriate progress in correcting hazards during multistep or lengthy abatement periods.
- So lets imagine the name of your company shows up on OSHA’s inspection list. Prior to inspection, the compliance officer becomes familiar with as many relevant facts as possible about the workplace, taking into account such things as the history of the establishment, the nature of the business and the particular standards likely to apply. Preparing for the inspection also involves selecting appropriate equipment for detecting and measuring fumes, gases, toxic substances, noise, etc.
- Now the compliance officer is ready to execute the 4 parts to the OSHA audit. They are… Knock at the Door The opening conference The walk-around/inspection The closing conference We will go into each one of these in detail
- First you will have a “Knock at the Door” Hello I am from OSHA and I am here to help you… Really…do you you think they are there to help or will this cost you? That depends…. So what can you do to prepare just in case this happens to at your business? Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO): A determination if you will ask for a warrant A form to document what occurs during the inspection All pertinent documentation such as written programs, training records, inspection records, etc.
- TIP: We recommend you do not require the CO to obtain a warrant before entry unless you need to gain time, such as when a manager or counsel needs to be present. It is your legal right to ask for a warrant but this might trigger a stricter audit (and raise possible red flags)
- Escort Compliance officer to waiting area while you gather your team and documents. An OSHA compliance officer carries U.S. Department of Labor credentials bearing his or her photograph and a serial number than can be verified by phoning the nearest OSHA office. Employers should always insist upon seeing the compliance officer's credentials. Anyone who tries to collect a penalty at the time of inspection, or promotes the sale of a product or service at any time, is not an OSHA compliance officer.
- TIP: Have a form available to record CO information and what transpired during audit
- In the opening conference, the compliance officer (CO) explains why the establishment was selected. The compliance officer then explains the purpose of the visit, the scope of the inspection, and the standards that apply. The employer will be given a copy of any employee complaint that may be involved. If the employee has so requested, his or her name will not be revealed. The employer is asked to select an employer representative to accompany the compliance officer during the inspection.
- TIP: Treat the CO in a professional fashion, coordinate with on-site contractors and vendors and bring up any trade secret issues you may have.
- If there is a plant safety committee, the employee members of the committee will designate the employee representative (in the absence of a recognized representative) Where neither employee group exists, the employee representative may be selected by the employees themselves, or the compliance officer will determine if any employee suitably represents the interest of other employees. You do NOT want this to happen!
- TIP : Have your representative pre selected and a alternate in case someone is gone and have all information readily available to review before the inspection
- Inspecting work areas for compliance with OSHA standards -Have company representation with CO CO will point out to the employer any unsafe or unhealthful working conditions observed -Take notes and have fix violations if possible -If CO takes a picture you take the same picture Trade secrets observed by the compliance officer must and will be kept confidential. $1,000 fine and/or one year in jail for releases confidential information
- -The employer may require that the employee representative have a security clearance for any area in question. The CO may want to interview employees. Make sure to schedule these interviews away from your work area. It’s up to hourly employees if they want company representation during the interview. Advise the employee of his/her rights, your appreciation of their cooperation, and to tell the truth.
- TIP: Make sure you have an employee representative attend the entire inspection and take accurate notes on areas reviewed and all discussions and comments from the CO, as well as any photos, videos. This will assist your attorney in contesting a citation
- Here are some other items to have prepared prior to inspection: - Documented training logs/records - Recordkeeping - Equipment inspection records - Safety and health Program (written) integral part of any OSHA inspection - Review of insurance and third party audits - Hazard assessment and abatement - Review of previous audits and citations. - Copy of the totals from the last page of OSHA No. 300 has been posted - OSHA poster is prominently displayed
- Create a Self Inspection Checklist for employees to complete weekly or monthly. Helps employees familiarize themselves with violations Mitigates the chance of citations
- According to the 29 CFR 1910, general industry standards these standards require writing plans in place as applicable to your business. These should be added to your written safety plan. Depending on your industry there could be more of less standards that should be included in your safety plan.
- TIP: Have documents easily accessible and written In OSHA’s mind if its not documented it probably didn’t happen.
- The CO will review any apparent violations and discuss possible methods for correcting them. - If possible correct them while he is there The CO will explain that the violations found may result in a citation and a possible financial penalty, then describe the employer’s rights and answer all questions.
- Citations are usually prepared at the local OSHA office and mailed to the employer via certified mail. OSHA has up to six months to send a Notice of Penalty. Employers have 15 working days upon receipt to file an intention to contest OSHA citations, and/or to request an informal conference with the area director to discuss any citations issued. The citations include: - A description “with particularity “of the violation - The proposed penalty if any - The date by which the hazard must be corrected
- TIP: Remember, this is not a time for debate. The law requires OSHA to issue citations for safety and health standards violations.
- Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer's good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $100, no penalty is proposed. Serious Violation - A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer's good faith, history of previous violations, the gravity of the alleged violation, and size of business. Willful Violation - A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to $70,000 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually, no credit is given for good faith. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction. Repeated Violation - A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation. Failure to Abate Prior Violation - Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date. De Minimis Violation - De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.
- Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer's good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $100, no penalty is proposed. EXAMPLE LACK OF PROPER MARKING ON CHEMICALS
- Serious Violation - A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer's good faith, history of previous violations, the gravity of the alleged violation, and size of business. EXAMPLE NOT LOCKING AND TAGING OUT EQUIPMENT
- Willful Violation –(One of most serious violation) A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to $70,000 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually, no credit is given for good faith. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
- Repeated Violation - A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.
- Failure to Abate Prior Violation - Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
- De Minimis Violation - De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation. A ladder or stairs that are not built to normal standards is an example of a de minimis violation.
- The employer will receive citations and notices of proposed penalties by certified mail. - employer must post a copy of each citation at or near the place a violation occurred, for three days or until the violation is abated, whichever is longer. Common causes to dispute citations include: - The citation is false - The citation’s dollar penalty is excessive - You disagree with the citation’s contention that the danger was real, serious, and that an accident was likely to occur - The contention that you are responsible for causing the unsafe conditions TIP: Contesting may not relieve you completely of a penalty, but it may help you negotiate a lesser fine. Contesting is usually a good idea. OSHA typically negotiates with employers to a lesser penalty amount.
- Un Preventable Employee Misconduct Shifting liability back to employee. The premise is that is would be unfair to cite the employer who has promoted safety, trained his employees for something that could not be prevented. (essentially what an accident is)
- The OSHA’s Field Operations Manual, says to prevail on the affirmative defense of “Unpreventable Employee Misconduct –the employer must show that it…
- …did 4 things: Established a work rule adequate to prevent the violation (Safety Policy) Effectively communicated the rule to employees; (Training, safety committees, signed agendas or quizzes) Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and (Audits dates and findings) Established effective enforcement of the rule when violations are discovered (discipline policy in handbook and document discipline even verbal)
- 1- Create a written Safety Policy Must address the hazards most frequently encountered by your employees. Work rules must be as strict or stricter than the OSHA standards. Work rules need to be in writing. Work rules should be distributed to all - Have employees sign and agree (Handbook and Safety Policy) General Standards in Safety Policy
- 2) Communicate the rules to your employees Ensure new employees are properly trained prior to being sent to work. - Examine your orientation program: New Hire and Worker Transfer - No “grace period” granted by OSHA for new employees. - Signed Forms for safety policy and handbook Continued training-Risk Management - Videos, personal reviews or work - Educate employee regarding most frequently encountered hazards - Industry specific risks - Review portions of work rules and OSHA standards - Distribute hand-outs
- 2) Communicate the rules to your employees Maintain documentation - date, names of individuals in attendance, trainer, translator, detail specific topics covered, job site or location of class Hold class in Spanish as well as English Safety Committees - Management should run or be involved - maintain strict records of meeting agendas, sign in sheet and subject matters - Discipline supervisor for failure to hold meeting or for failure to return documentation in timely manner Periodically use guest speaker or do demonstration to enforce safety - Insurance Agent, Risk Manager - Other Vendor- Fleet Safety, Hi-Los, Wellness Coaches, OSHA Consultants
- 3) Take Steps to Discover Violations Safety inspections, walkthroughs, audits Detect hazard - written up hazards condition and abatement taken Detect work rule violation - write up employee(s) Use other resources to do periodic safety inspections - Company safety representative - Top company management officials - Worker compensation carrier - General liability carrier - Outside consultant/auditor - Sub-contractor - Question laborers TIP: OSHA may ask your laborers: - how long were they performing in such a manner? - how long did condition exist? - did their supervisor instruct them to work in such a manner? did their supervisor or anyone else from the company know they were doing this? How would your employees answer these questions?
- 4. Discipline: Enforce and document violations Does your company have a disciplinary system? - Is it in writing? - Is it in or referenced in the work rules? Do the employees know they can be disciplined for violation of work rules? Do the supervisors know they can, and will be disciplined for failing to discipline an employee for violating the work rules? Do you document verbal warnings? Do you track discipline? Have you suspended or terminated an employee for violating your safety rules? Are employees aware that other employees have been disciplined for violating work rules? Your safety program must enforce the safety rules - Document discipline TIP: Accountability Starts with Management: Don’t preach PPE and walk into your factory floor or jobsite without your own glasses
- QUESTION: OSHA cited my company because an employee was found not wearing safety glasses. There is no dispute the employee was not wearing the glasses, or that it was required (it is), but the employee was violating our strict safety glass policy. Do we have any defenses? To have evidence to prove the Un Preventable Employee Misconduct defense you need to demonstrate that: Employer has an established PPE policy that addresses the type of PPE for which the employer was cited; All employees (including the employee who was found not wearing the PPE) have been trained on the PPE policy; Employer conducts regular audits of the workplace to ensure employees are following the PPE policy Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules). STRONG CASE IF YOU CAN DEMONSTRATE ALL 4 CRITERIA
- SUMMARY- Be Prepared and proactive. This will help make your workplace more safer, healthier and profitable Start recording and implementing written safety plans Self Inspect yourself Create Safety Policy on OSHA inspections- Allows you to plan for the inspection Understand the law (consult 29 CFR 1910, general industry standards)