OCCUPATIONAL SAFETY AND HEALTH LAW FUNDAMENTALS

Size: px

Start display at page:

Download "OCCUPATIONAL SAFETY AND HEALTH LAW FUNDAMENTALS"

Raymond Rich
5 years ago
Views:

1 AMERICAN BAR ASSOCIATION SECTION OF LABOR & EMPLOYMENT LAW 2008 CLE Conference Denver, CO OCCUPATIONAL SAFETY AND HEALTH LAW FUNDAMENTALS Presented by: Melissa A. Bailey, Esq. Randy Rabinowitz, it Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Moderator Gary B. Eidelman, Esquire Saul Ewing LLP

2 Structure of the OSH Act of U.S.C. 651 et seq. OSHA OSHRC NIOSH Martin v. OSHRC: Split enforcement scheme means that OSHRC must defer to OSHA s reasonable interpretation of a standard

3 Relationship to State OSHA Programs Federal preemption of state regulation Concept of State Plans Fed OSHA must approve -must be at least "as effective as" Fed OSHA -standards not always identical

4 Federal OSHA regulates private sector employers. 24 States and Two Territories Currently Have Approved Plans Alaska Arizona California Hawaii Indiana Iowa Kentucky Maryland Michigan Minnesota Nevada New Mexico North Carolina Oregon Puerto Rico South Carolina Tennessee Utah Vermont Virginia Washington Wyoming Once approved, state enforcement supplants federal enforcement. NOTE: Connecticut, New Jersey, New York and Virgin Islands have plans that cover public sector (State & local government) employees only.

5 Who is covered? Employer : A person engaged in a business affecting commerce who has employees (29 U.S.C. 652) Does not include United States t (except the Postal Service) or any State or political subdivision of a state

6 Standards Initial standards adopted pursuant to Section 6(a) (29 U.S.C. 655(a)) Definition of a standard (29 U.S.C. 652(8)) Requires q conditions, practices, processes Reasonably necessary or appropriate For safe/healthful employment

7 Standards,, cont'd. Remedy significant risk of impairment Technological feasibility Economic feasibility

8 Standards Rulemaking Procedures Notice of proposed rulemaking - Advise public of intent - Publish proposed standard Hearings and comments Publish final standard

9 Standards Rulemaking,, cont'd. Challenges in U.S. Courts of Appeals Standard of review: Arbitrary and capricious / substantial evidence Health standards must address significant risk and compliance must be feasible

10 Examples of Standards Hazard Communication Asbestos Lockout/Tagout Bloodborne Pathogens Personal Protective Equipment

11 Regulations 29 U.S.C. 657(g)(2) Reasonably related To carry out responsibilities under the OSH Act Wide array of topics

12 Regulations,, cont'd. Inspections Recordkeeping Abatement verification Discrimination complaints Medical access Challenge validity in U S District Challenge validity in U.S. District Courts

13 Inspections Types Imminent danger Fatality/catastrophe Complaint/referrals Programmed - General schedule - Emphasis programs

14 Inspection Types,, cont'd. Phone/fax/letter Onsite

15 Opening Conference Greetings Credentials Type and scope of inspection Employee participationp Consent v. search warrant Document review Trade secret issues

16 Warrants If employer does not consent to inspection, administrative search warrant is required (Marshall v. Barlow s) OSHA may obtain ex parte from District Court judge or magistrate Employer may move to quash Employers rarely demand warrants

17 Walkaround Participants Employer's right to accompany Employee's right to accompany Scope of inspection Plain view doctrine Photographs/videos Employee interviews

18 Closing Conference Identify problem areas Time needed to abate Advise about rights to appeal

19 Issuance of Citations Cite standard/regulation or general duty clause Provide factual specification i or sufficient notice Classify alleged violations Propose penalties Propose abatement period (method)

20 Classifications of Citations Willful Conscious disregard of OSHA requirements Plain indifference to employee safety and health Penalties up to $70, per instance Egregious multiplier li

21 Classifications,, cont'd. Repeated Substantially similar violation on record Three-year compliance record Penalties up to $70,000

22 Classifications,, cont'd. Serious Assume accident occurs Substantial probability of death or serious physical injury Penalties up to $70,000

23 Classifications,, cont'd. Non-Serious/Other Assume accident occurs Death or serious physical injury unlikely Penalties up to $7,000

24 Classifications,, cont'd. Failure-to-Abate Cited violation never corrected Final order on record Penalties up to $7,000 per day

25 Classifications,, cont'd. De Minimis Lack of direct relationship to employee safety or health No impact on compliance history No penalties

26 Nature of Penalties Civil Egregious Criminal

27 Calculation of Proposed Penalties Gravity - severity and probability Size of business (up to 60% reduction) Good faith (up to 25% reduction) History (up to 10% reduction)

28 Abatement Must promptly correct any alleged violations OSHA prescribes an abatement period Generally, no more than 30 days Abatement obligation stayed when citation contested

29 Employer Responses to Citations Accept Request informal conference Contest

30 Employee Response to Citations Contest reasonableness of abatement period Participate in employer-initiated proceedings

31 Burden of Proof Burden on OSHA To establish Prima facie case Of a violation by Preponderance of the evidence

32 Prima Facie Case (Standard) Cited standard applies Terms were violated Employee exposure Employer knowledge

33 Prima Facie Case (General Duty Clause) Hazard in workplace Recognized by employer or industry Death/serious physical harm Feasible means of abatement

34 Affirmative Defenses Excuse violations otherwise established Alternative arguments Burden of proof on employer

35 Unpreventable Employee Misconduct Work rule in place Communicated to employees Means in place to detect violations Discipline imposed for violations

36 Coverage Entity does not affect commerce Entity has no employees

37 Infeasibility Infeasible to comply Alternative protective measures Alternative of seeking a variance

38 Statute of Limitations 6-month rule Continuing violations

39 Greater Hazard Hazards of compliance greater than hazards of non-compliance Alternative protective measures unavailable Variance inappropriate/unavailablei il

40 Invalidity of Standard Procedural OSHA failed to follow OSH Act rulemaking procedures Substantive Underlying standard unenforceably vague or arbitrary and capricious

41 Preemption by Another Agency Section 4(b)(1) Act does not apply to working conditions regulated by another federal agency Other agency must actually exercise authority Examples: FAA, DOT,

42 Preemption of the Standard The General Duty Clause cannot be cited if a standard applies If an industry-specific standard applies, OSHA may be precluded from citing a general standard Example: Section (power generation) has a provision on enclosed spaces ; may preclude citation under general industry standard

43 FED OSHA Multi-Employer Citation ti Policy Creating employer Exposing employer Correcting employer Controlling employer Summit Contractors

44 Informal Conferences Conducted by OSHA after citation is issued Timing Parties discuss settlement t

45 Procedures Call OSHA to schedule Conduct w/in 15 working days of receipt of citation (Fed OSHA) Post notice in workplace

46 Participants OSHA reps. Company reps. Employee reps.

47 Agenda Disposition of items Classifications Penalties Time for abatement Abatement method

48 Settlement Considerations Potential for future repeated and willful citations Exposure in related civil actions Workers' compensation bar Intent to harm Gross negligence resulting in death

49 Closing the Deal Settlement authority Settlement agreements Submission of check Provision of abatement verification

50 Contesting Citations Notice of contest Docketing with OSH Review Commission Solicitor's it Office Company representative Employee participation

51 Contesting Citations,, cont'd. Assignment of ALJ Simplified Proceedings Pleadings, discovery and motions Hearing before ALJ Decision of ALJ

52 Contesting Citations,, cont'd. Review by OSHRC Commissioners Appeal to U.S. Circuit Courts of Appeals Appeal to U.S. Supreme Court

53 OSHA Enhanced Enforcement Policy Triggered by fatality or high gravity violations Follow-up inspections Programmed inspections Increased awareness "Creative" settlement provisions Section 11(b) enforcement

54 OSHA Site-Specific Specific Targeting Program OSHA sends notification letters to 14,000 employers Primary and secondary inspection lists Wall-to-wall comprehensive inspections

55 Special Emphasis Programs Target a particular hazard or industry Current programs Refineries Combustible Dust Amputations

56 Anti-Discrimination Provisions Section 11(c) Person (employer, union, ( p y employment agency) cannot discharge or in any manner discriminate

57 Anti-Discrimination Provisions,, cont'd. Broad range of conduct protected Participation p in inspection Complaint to OSHA or employer Refusal to work (good faith, real danger, insufficient time to alert OSHA, ask employer to correct)

58 Anti-Discrimination Provisions,, cont'd. Employee has 30 days to file complaint OSHA has 90 days to investigate No private right of action under the OSH Act OSHA may bring action in U.S. District Court

59 Anti-Discrimination Provisions,, cont'd. Damages may include Reinstatement Back pay/interest Purging of disciplinary file Restoration of lost benefits/seniority

60 Effect of OSHA Citations on Workers CompensationLiability Highly dependent on state law Some states: Willful or grossly negligent conduct may overcome the workers compensation bar Typically no bar for employees of contractors Some states (e.g. California) allow increased damages if employer misconduct is shown

61 Open Discussion

Jake Jennings Director of Risk Control

OSHA Inspections: Don t Let OSHA Be A Pest Jake Jennings Director of Risk Control The Preventable Accident Can accidents be prevented? Proactive vs. reactive behavior Who s safety program is it anyway?