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1fisherphillips.com

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Presented by:

Howard A. Mavity

Phone: 404.240.4204 | Cell: 404.277.8596

Email: [email protected]


2fisherphillips.com

May 7, 2019

Presented by:

Howard A. Mavity

Phone: 404.240.4204 | Cell: 404.277.8596


SAFETY FOR MANAGEMENTWhere Executive Leadership Matters.


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WHY SHOULD EXECUTIVES MASTER SAFETY?

• The Right Thing to Do.

• Safety affects the bottom line.

More than just Workers’ Comp costs.

Affect on morale and labor relations.

Protecting reputation.


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PROGRESS IS UNEVEN.

Thousands still die at work each year.

75% of workers polled in one study say that

they felt they or someone they knew would be seriously injured.

Only 1 in 3 of these workers said that they would

approach an employee acting unsafely.


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PROGRESS IS UNEVEN.

93% of employees in another study said that their Company was currently at risk of an injury or death caused by 1 of 5 avoidable workplace behaviors (by both supervisors and employees):

o “Get it Done”

o “Un-discussable Incompetence”

o “Just this Once”

o “This is overboard”

o “Are you a team player”

And nearly one-half were aware of injury or deaths caused by these factors…

Why is this still occurring in 2019?


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PROGESS IS UNEVEN.

Approximately 70% of the 570+ fatalities with which I’ve dealt involved employees engaging in an unsafe or foolish act …

and the majority of those employees were experienced.

What are some contributing factors or reasons?

How do we teach “Good Judgment?”


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PROGRESS IS UNEVEN.

• Despite often elaborate safety processes, sophisticated companies’ locations regularly get cited for routine or low-hanging violations.

And those OSHA Standards violated tend to be the routine items often violated again at another site over a five-year period … resulting in costly Repeat citations.

• The largest dollar OSHA penalties do not involve a death case.

• Go to the “Newsroom” at OSHA.gov and look at notices of six-figure citations.


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PROBLEMS WITH EXECUTIVES MASTERING SAFETY.

• The myth of “Safety is Number 1!”

• What is your background?

Did you study OSHA and Safety in school?

Did you come up in a safety-centric/higher hazard industry such as manufacturing or construction?

What is your professional focus/role?

Do you know what is necessary for Safety to become a serious part of the Company culture?


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IS SAFETY GENUINELY A KEY VALUE OF THE ORGANIZATION CULTURE?

• Every executive I’ve met, proclaimed that “their number one priority was safety.”

• But was it a key focus?

• What steps had the executive taken?

• How aware was the executive of the company’s safety efforts?

• Many Safety Professionals are viewed as “Admin,” “not production,” “a cost item,” or “out-of-touch.” (and view themselves this way).

Both the safety professionals and executive’s fault.

• Many Company safety efforts may not have adequate resources.

Why?


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WORKPLACE SAFETY IS OFTEN UNDERUTILIZED

AND MISUNDERSTOOD.

• Artificially separated from management, HR, engineering, maintenance, purchasing, bidding, and planning.

• Often disconnected from operations and the actual delivery of product or services.

• Safety professionals face many competing demands. May have too many bosses. The company has not developed safety professionals into managers and effective representatives of the company.

• Supervisors are inadequately trained, may have too many tasks, and are drowning in data – also applicable for general managerial and supervisory development.

• Viewed as an impediment when doing more with less and faster.



WORKPLACE SAFETY IS OFTEN MISUNDERSTOOD.

There are three aspects of workplace safety:

• Protecting employees and third parties.

• Compliance.

• Contributing to profits … I’m serious.

Remember: Compliance and a Safe Workplace are not the same thing …and vice versa.



THERE IS MORE EXPOSURE THAN REALIZED.

• Damage to the company brand. The BP experience.

• Workplace Safety is increasingly used by unions and other third parties, including as part of the evaluation of a company’s social responsibility.

Learn from the #METOO experience.

UAW attacks on Tesla.

Amazon and other distributors.

• Unions win more elections when safety is an issue.• OSHA fatalities, injuries and citations can block or harm acquisitions

and purchases.



MORE EXPOSURE THAN REALIZED.

• Effect on Bidding. Rating Services such as ISO Networld, BROWZ.

• Government Contractors requirements.

• City Ordinances

• Delays and the resulting civil claims, especially in construction.

• Fed-OSHA Employee Injury Data Submission and Posting – stayed.



AREAS OF LEGAL COMPLIANCE FOR “SAFETY.”

• OSHA and MSHA.

Differences between OSHA and MSHA.

• 20+ States maintain “State-OSHA Plans.”

Must at least meet Fed Standards.

May have additional Standards – generally have different Appeal processes.

Some have different Accident reporting/recordkeeping requirements.

Others require additional Training or Injury and Illness Prevention Plans (IIPP).

• Other areas … Federal Motor Carrier Safety Rules/DOT, Workers Comp, General Liability, Fed/State Environmental.



ABOUT OSHA.

• OSHA regulates employee-safety and is not a product liability standard – manufacturers/OEMs not obligated to provide materials OSHA-compliant.

• OSHA does not certify or approve products.

• OSHA may have adopted Consensus Standards such as ANSI, National Electric Code (NEC) or National Fire Prevention (NFP) codes or may determine employer obligations through reference.

• But compliance with Consensus Codes does not guarantee compliance with OSHA Standards or vice versa (Fire Code example).

• OSHA Standards vary by industry.



EXPOSURE AREAS AND OSHA PENALTY SYSTEM.

• Serious, Other-than Serious, and de minimis classification.

• Willful classification. (with plain indifference doesn’t have to be

top management.).

• Repeat classification.

5-years – same Standard – “substantially similar.”

Low hanging fruit items.

• State OSHA Plans may have more classifications.



FED-OSHA PENALTIES(Adjusted Each year for Inflation)

Type of Violation Penalty

SeriousOther-Than-SeriousPosting Requirements

$13,260 per violation

Failure to Abate $13,260 per day beyond the abatement date

Willful or Repeated $132,598 per violation



LEGAL IMPACT OF CITATIONS.

• Not proof of product liability issues. Admissibility varies for civil actions.

• Relationship to Workers Compensation/Exclusive Remedy.

State Laws , such as Alabama – coworker claims.

State Workers Comp systems – California Serious and Willful claims, Ohio BWC system.

• Criminal action exposure.



BASIC SAFETY PROCESSES AND PLATFORM.

Assign responsibilities.• The top safety manager should report to CEO, COO or similar position.

• Best that it be to an executive in charge of operations.

• Develop Safety Obligations/Job Descriptions for Executive, Manager, Supervisor, and Employees.

Develop Safety Program (guiding document).• No Fed-OSHA standard requires a “Safety Program,” although certain state-OSHA regulations such as in

Nevada and California impose certain responsibilities.

• However, piecemeal efforts will be ineffectual without the foundational safety policies and processes to guide efforts.

• There are numerous guides and approaches, including ISO45001 and OSHA’s Voluntary Guidelines to a Safety and Health Management Program.

• The Company will develop certain Safety Policies which will guide the development of Safety Procedures.

• The Safety Program will set out responsibilities and core policies, training procedures and tracking/documentation, Safety Committee and employee involvement, Job safety Analysis and Site Safety analysis, orientation procedures, periodic training, self-audits and walkarounds, contractor management, etc.



KEY SAFETY PROGRAMS/POLICIES.

• Job Safety Analysis(JSA)/PPE

• Hazard Communication/SDSs (Safety Data Sheets)

• Lock Out/Guarding

• Electrical

• Respiratory Protection (and silica, lead, asbestos, etc.)

• Housekeeping

• Powered Industrial Trucks (PITs)/Equipment Operation

• First Aid/CPR/Bloodborne Pathogens

• Fire Prevention/Evacuation/Emergency Action Plan/Fire Extinguishers

• Fall Protection

• Confined Space Entry

• Excavation and Trenching

• Industry-specific Standards (Telecommunications, Electric generation-Distribution-Transmission, Construction, etc.)



OSHA WORKPLACE INJURY RECORDKEEPING OBLIGATIONS

• Is the employer required to maintain the OSHA 300 Log?

Exemptions are found at OSHA.gov, Recordkeeping page.

• IF yes, the injury must be properly entered on the 300 Log within 7 days.

You can revise the entry if it is later found to be non-work related.

• The employer must complete the OSHA Form 301, which is generally the same as the state “First Report of Injury.” within 7 days.



OSHA INJURY REPORTING OBLIGATIONS.

Employers must now report the following to OSHA:

• All work-related fatalities and three or more hospitalizations within 8 hours (same as current requirement)

• All work-related in-patient hospitalizations of one or more employees within 24 hours

• All work-related amputations within 24 hours

• All work-related losses of an eye within 24 hours



OSHA INJURY REPORTING OBLIGATIONS.

IN PATIENT HOSPITALIZATIONS:

In-patient hospitalization is defined as a formal admission to the in-patient service of a hospital or clinic for care or treatment.

1904.39(b)(10) Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing?

• No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each inpatient hospitalization that involves care or treatment.

But, Get it in writing.



WHY OSHA COMES ON SITE.

• Complaints by current or former employees or unions.

• Reports of overnight hospitalization for treatment, amputation or loss of an Eye.

• Fatality or Catastrophe. 8 hours notification period.

What about Heart Attacks?

Deaths on Public Roads.

• Programmed inspections - National Emphasis Programs and Regional or Local Emphasis Programs.



OSHA INSPECTION PROCESS.

“Manage the Inspection Process.”

• The Greeting. (Involve counsel?).

• Why are they present?

• Warrant?

• Determine the Scope of the Inspection. You may need to act to limit the scope to accident, such as to complaint items or

accident.

• Who to manage the inspection? This is the point at which one regrets not having a Inspection Management Procedure

in place and site supervisor training.




• Initial Document Requests – OSHA 300s, 301s, and Hazard Communication – time sensitive.

• How to handle other document requests.

• Walk-arounds.

• Photos and Videos.

• Trade Secrets.

• Interviews of employees.

• Interviews of supervisors and managers.

• Industrial Hygiene Testing.




• Return Visits and further Document requests.

• Closing Conference and OSHA procedures.

• Informal Conference.

• Evaluating whether to Contest a case and further appeal decisions (more negotiating opportunities will occur.).

• What happens next – Fed-OSHA Administrative Law Judges (ALJs), the Occupational Safety and Health Review Commission (OSHRC) and U.S. Circuit Courts.

• Different for some state OSHA Plans.



“The Care and Feeding of Safety Personnel.”

For Later Reading.Effectively Managing Your Safety Professionals.



EFFECTIVE STRUCTURE.

• The top safety professional needs to directly report to at least second tier of operating management, and have dotted line to COO or CEO.

• Safety should coordinate closely with HR but should not be under HR.

• Safety generally should not report to Finance/CFO but there are exceptions to this finding.

• Risk Management includes Safety, and also Insurance, Workers Comp, General Liability, DOT, etc.. Coordination is necessary but Safety may require special treatment.

• You have to determine in many Safety Positions whether the focus should be on audits, training and being-on-the-floor, or planning and policy development.



EFFECTIVE STRUCTURE.

• Depending on size and industry type, DOT/FMCSA compliance may be separate.

Transportation may be the least affected by OSHA but with the most third party exposure.

• There is no black-and-white test for when a site needs a safety professional. Depends on nature of the work and size.

• However, if no one clearly has responsibility, time, and is held accountable, the safety function will be neglected.

• Monitor for when one area suffers so that another thrives, such as good training but weak policies and written compliance.

• Sophisticated Corporate-developed Safety programs may not fit or be followed at the site level.



SUGGESTIONS TO SAFETY PROFESSIONALS TO BE EFFECTIVE.

• Be realistic. Recognize the challenges.

• Don’t become cynical - and never forget that you are a representative of management and part of the solution. • No whining to employees and “blaming the boss.”

• Audit, Identify and isolate the challenges.

• Devise Business Plans/mile markers/measureable results.

• You must have substance, but safety is about marketing.

• Learn to adroitly balance financial constraints.

• Become a “Management Generalist with deep concentration on safety.”

(Used most recently at Georgia Tech Masters program and AGC-National – ASMTC.)



MORE ADVICE: SAFETY PROPOSALS ARE NOT A LINE ITEM, A COST OR ADMIN – SAFETY IS A PART OF PRODUCTION, AND

MANAGEMENT AND PROFIT MAKING.

• There is more to thinking like a business person than slinging terms around like “the C Suite.”

• Don’t isolate yourself (nor should HR).

• Solve problems.

• Learn HR, coordinate and woo them, and add their skills and tasks to your repertoire.

• What wins over your executives … plant managers … superintendents?

• Forge relationships with Maintenance, Plant Engineering, Planning.

• Get in the Planning, Capital and Budget process.



SHOW OUT SAFETY IS A PART OF PRODUCTION, AND MANAGEMENT AND PROFIT MAKING.

• Tailor to your audience.

• Recognize Data overload.

• The challenges of finance.

• Make costs and gains real.• Explain Willful and Repeat citations.

• Bidding and Rating Services.

• Sustainability/Social responsibility Audits.

• Comp Costs.

• Turnover.

• Union Avoidance.



FISHER & PHILLIPS LLP

IS DEDICATED EXCLUSIVELY TO REPRESENTING EMPLOYERS IN THE PRACTICE OF EMPLOYMENT, LABOR, BENEFITS, OSHA, AND

IMMIGRATION LAW AND RELATED LITIGATION.

THESE MATERIALS AND THE INFORMATION PROVIDED DURING THE PROGRAM SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS

CRITICAL OF THE CURRENT OR PAST ADMINISTRATIONS.

THIS PRESENTATION DOES NOT CONSTITUTE LEGAL ADVICE. EVERY SITUATION IS DIFFERENT AND MAY REQUIRE CONSULTATION WITH

COUNSEL.



THANK YOU

Presented by:

Howard A. Mavity

Phone: 404.240.4204 | Cell: 404.277.8596


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