asse san francisco chapter professional development conference current trends at osha: what’s hot...

ASSE San Francisco ChapterASSE San Francisco ChapterProfessional Development Professional Development

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Current Trends at OSHA: What’s Hot in 2010

Fred WalterWalter & Prince LLPFebruary 23, 2010

www.walterprincelaw.com

Table of ContentsTable of Contents

DOSH Enforcement◦Heat Illness (cont’d)◦Heat from the Feds◦Heat on Controlling Employers (cont’d)◦Heat on Employers re: penalties

© Walter & Prince LLP 2009


OSHAB (The Appeals Board)◦Heat from Labor, Legislature◦Heat on Employers re: Abatement◦Heat on Employers re: 342(a)



Worker’s Compensation Appeals Board◦Serious & Willful Misconduct◦Heat on Crane Owners



Superior Court and Beyond◦MEW Controlling Employers◦MEW: All Employer’s Duty to Report Hazards


DOSHDOSH

Most cited sections:◦3203: Illness and Injury Prevention Program◦3395: Heat Illness Prevention◦1509: Construction Application of IIPP◦5194: Hazard Communication◦6151: Portable Fire Extinguishers


DOSHDOSH

Last Year: Shifting the Paradigm◦DOSH as a service-oriented agency◦Employers as Clients

This Year: DOSH as Fed/OSHA’s arm◦Fed/OSHA Audit◦“As Effective As…”

Citation for each Affected Employee New definition of “serious” physical harm


DOSHDOSH

Heat Illness◦DOSH is enforcing 3395 as a strict liability rule:

Any incidence of HI means that the reg was violated.

◦DOSH is enforcing 3395 as they would like it to read, not as the SB wrote it.

◦DOSH: All heat illness is serious illness


DOSHDOSH

More Heat than Light on 3203◦The General Duty Clause: “If you had an

accident, there must have been a failure to train, or to ID a hazard, or both.”

◦The Junior Woodchuck Handbook: All job-related special programs (e.g., fall protection, traffic control) must be in your IIPP.


DOSHDOSH

Some Confusion on 342(a)◦Who is an Employer for the purpose of

reporting?◦Can the Employer designate someone not an

employee to report?


DOSHDOSH

Integration Issues◦Can IH’s become Safety Engineers?◦Ex: OPU in heavy equipment death case◦Ex: Three visits to a bakery on a machine

guarding case; one additional citation for a dead cockroach


DOSHDOSH

Controlling Employer Issues◦Harris Construction hearing in March◦An active safety program is good, right?◦How many controlling employers can dance on

a construction site?


DOSHDOSH

Aggressive Penalty Settlement Positions◦Are penalties controlled by regulation?◦Forget your defense, it was a serious injury.◦Add: Stipulated penalties


DOSHDOSH

Aggressive Penalty Collection Efforts◦DIR Accounting Office not waiting for decisions,

orders to become final◦Labor Code allows DOSH to report orders

immediately after issuance◦Labor Code allows DIR to apply for judgment

upon notice of unpaid penalty


DOSHDOSH

New Definition of “Serious” Physical Harm◦Now: “…Substantial probability of death or

serious physical injury or illness.” Serious Injury

◦Loss of a member of the body◦Serious permanent disfigurement◦Hospitalization for more than 24 hours for other than

observation


DOSHDOSH

New Definition of “Serious” Physical Harm◦Next:

“Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job.”

“Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor or other licensed [HCP].”


Appeals BoardAppeals Board(From our 2009 Presentation)(From our 2009 Presentation)

Criticism from Labor◦Board needs to be more punitive ◦More appeals need to be forced to hearing◦Too many settlements◦Negotiated penalties do not spur changes in

behavior


Appeals BoardAppeals Board

Heat from Labor, Legislature◦“Pay less attention to the law. Do justice.”◦-- January Advisory Committee meeting

Abatement Pilot Project◦Serious/higher citations with abatement issues◦Target: Six months to decision



Advisory Committee meeting◦Thursday, February 25, 2010 – Sacto◦Proposed revisions of procedural rules

Allow testimony by conference call or affidavit Presume expertise of DOSH inspectors Shift burden of proof to employers Adopt Abatement “Rocket Docket”



Beyond the Procedural Fight:◦342a reductions: not so fast◦Are appealed criminal convictions admissible?


Serious & WillfulSerious & WillfulMisconductMisconduct

Continued increase in filingsBigge Crane decision:

◦Crane operators as management


Superior Court and BeyondSuperior Court and Beyond

The Harris Case (March, 2010)◦Who has to prove controlling ER status?◦Is an affirmative defense available?


Superior Court and BeyondSuperior Court and Beyond

California Court of Appeals◦Suarez v. Pacific Northstar Mechanical, Inc.◦All ER’s on MEW have duty to report hazards


ResourcesResources

Walter & Prince LLP◦www.walterprincelaw.com

E-zines, articles and further linksFed/OSHA Establishment Search

◦www.osha.gov/oshstats/index.htmlCal/OSHA Regulations

◦www.dir.ca.gov/samples/search/query.htmCal/OSHA Enforcement (DOSH)

◦www.dir.ca.gov/DOSH/dosh1.html Cal/OSHA Appeals Board

◦www.dir.ca.gov/OSHAB/oshab.html


asse san francisco chapter professional development conference current trends at osha: what’s hot...

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