CalOSHA The Rules Have Changed Have you Associated

Cal/OSHA: The Rules Have Changed Have you? Associated California Loggers Annual Meeting, Reno, NV January 17, 2013

Who’s Who? OSHSB – Development § DOSH - Enforcement § OSHAB - Interpretation § Walter & Prince LLP - 2013

The Division § § Enforcement of Safety Orders Permitting Consultation BOI Walter & Prince LLP - 2013

An Overview Preparing for the Inspection Cal/OSHA Inspections Citation Appeal Basics A Regulatory Update Walter & Prince LLP - 2013

The Big Change AB 2774 Amended CA Labor Code 6432 Became effective January 1, 2011 Redefined citations classified as serious Created the “interactive process” Made inspectors “experts” Walter & Prince LLP - 2013

The Big Change The highlight: Made it easier for the Division to establish citations Walter & Prince LLP - 2013

The Big Change The highlight: Changed investigation procedures. Before issuing a citation, DOSH must make a “reasonable attempt” to determine Relevant training for employees and supervisors Procedures for discovering, controlling and correcting hazards Supervision of employees Procedures for communicating with employees Walter & Prince LLP - 2013

Have You Changed? Employer focus: Tools to defend against a serious citation Be aware of them Develop them now The Question: Do you have the tools? Walter & Prince LLP - 2013

Have You Changed? The next question is: Can you prove it? Relevant training for employees and supervisors Procedures for discovering, controlling and correcting hazards Supervision of employees Procedures for communicating with employees Walter & Prince LLP - 2013

Developing the Tools Review your paper programs IIPP (Accident Prevention Program) Heat Illness Prevention EAP (Emergency Rescue) Hazard Communication Other required written programs LLP Walter & Prince - 2013

Developing the Tools Employee Training Are the W’s covered? Is it done? Is it relevant? Is it documented? Walter & Prince LLP - 2013

Developing the Tools Identification of Hazards Are the W’s covered? Are inspections done? Are they timely? Are they thorough? Are they documented? Are hazards corrected? Extra credit: Are corrections documented? Walter & Prince LLP - 2013

Developing the Tools Supervision of Employees Are the W’s covered? Are employees supervised? What is the scope of the supervision? Is supervisor qualified? Is supervisor supplementing training, inspections and communication programs? Walter & Prince LLP - 2013

Developing the Tools Communication with Employees Are the W’s covered? How? This is not a one way street. If you wait for them, pitch a tent (be proactive!) If you don’t ask, DOSH will Walter & Prince LLP - 2013

When to Expect an Inspection Complaints Accidents High Hazard Employers (Ex-mod > 1. 25) Industry Sweeps (Heat, etc. ) Walter & Prince LLP - 2013

Serious Injury Reporting Reportable Injury: Definition has not changed. The Penalty for failure to report: Now $5, 000. No reductions No adjustments Walter & Prince LLP - 2013

We’re From Cal/OSHA And We’re Here To Help Walter & Prince LLP - 2013

The Opening Conference First Things Ask for ID cards and business cards Read their business cards Safety Engineer Industrial Hygienist Bureau of Investigation Walter & Prince LLP - 2013

The Opening Conference First Things Ask why they are there Ask what they want to see Specific location Specific machine Specific operation Note: Inspections can be specific or “wall-towall” Phone a Friend Walter & Prince LLP - 2013

The Opening Conference No warnings, no appointments “Reasonable time” during work day Purpose is to write citations Statements by foremen, higher are employer admissions Every conversation is an interview Be polite No chit-chat about work Walter & Prince LLP - 2013

The Walk-Around Enforce your safety / PPE rules Walter & Prince LLP - 2013

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The Walk-Around Consider your path to the site No time for the “scenic route” Consider sending a scout ahead Walter & Prince LLP - 2013

The Walk-Around The DOSH Team One or more inspectors Measurement tools As simple as a measuring tape As complex as gas sniffers Cameras Union Rep Employee(s) Walter & Prince LLP - 2013

The Walk-Around Your Team You, with notebook Safety Manager Note taker / Photographer Mechanic or “fixer” Walter & Prince LLP - 2013

The Walk-Around Photographs One or more to each of DOSH’s Discoverable, but better than relying on DOSH alone Walter & Prince LLP - 2013

The Walk-Around Employee Interviews Employee has last say who attends If you are in… Take notes Keep comments short Do not allow yourself to become part of the interview Do not help the inspector Walter & Prince LLP - 2013

The Walk-Around Employee Interviews If you’re out… Make a note to interview the employee later What were you asked? What did you say? What was the inspector interested in? Walter & Prince LLP - 2013

The Walk-Around Avoid becoming part of the inspection Don’t be too helpful “Here, take my watch and count how long it takes to walk to the eyewash station. ” Don’t opine “Geez, this? ” what could have prevented Watch for leading questions “So she was a slow learner, huh? ” Walter & Prince LLP - 2013

The Document Request Programs IIPP, Heat Illness Prevention, Etc. Inspections Training Investigations Other Walter & Prince LLP - 2013

The Document Requests Three days to produce Do not create documents if they do not exist Walter & Prince LLP - 2013

The Document Requests Accident Reports No “root cause analysis”, please! No speculation No accident reconstruction Consider: Attorney supervision Walter & Prince LLP - 2013

The Document Requests Accident Reports Section 3203(a) does NOT require… Opinion or conclusion on cause of accident Walter & Prince LLP - 2013

The Document Requests Accident Reports Section 3203(a) requires… Identity of investigator Date of investigation What hazards were found Confirmation that these hazards were fixed Walter & Prince LLP - 2013

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The Exit Conference Time to ask questions and listen What did you find? What citations are you considering? What safety regulations are you thinking of? Do NOT correct them if they’re wrong Walter & Prince LLP - 2013

The Exit Conference A word about the Cal/OSHA 1 BY Verified response Will by used by OSHA at hearing Is discoverable Walter & Prince LLP - 2013

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Cal/OSHA Citations Issuance and Service of Citations Within 6 months of violation The “cover up” Exception Walter & Prince LLP - 2013

Cal/OSHA Appeals 15 Working Days From Receipt of Citations Walter & Prince LLP - 2013

Cal/OSHA Appeals Factors to consider: Was the citation timely issued? Was there a violation of the cited reg. ? Do I have a defense to the citation? Is the penalty appropriate? How can I abate the cited condition? Walter & Prince LLP - 2013

Cal/OSHA Appeals Is the citation related to an employee injury? Is the citation related to a fatality? Is a criminal investigation possible/likely? Will the citation impact my ability to contract for future work? Are future citations possible/likely? Walter & Prince LLP - 2013

Cal/OSHA Citation Penalties Monetary penalties set by law (Title 8 CCR 336) By regulation (serious injury reporting) By classification (serious, general, etc. ) Walter & Prince LLP - 2013

Cal/OSHA Appeals Affirmative Defenses Independent employee act No consent to inspection Lack of employer knowledge of serious violation Logical time Walter & Prince LLP - 2013

Cal/OSHA Appeals Informal conference 10 Days Pre-Hearing Conference Hearing Petition for Reconsideration Walter & Prince LLP - 2013

Resources Walter & Prince LLP www. walterprincelaw. com http: //www. caloshablog. com/ www. dir. ca. gov/samples/search/query. htm Cal/OSHA Enforcement (DOSH) www. osha. gov/oshstats/index. html Cal/OSHA Regulations Erratic blog on timely issues Fed/OSHA Establishment Search E-zines, articles and further links www. dir. ca. gov/DOSH/dosh 1. html Cal/OSHA Appeals Board www. dir. ca. gov/OSHAB/oshab. html Walter & Prince LLP - 2013