ASSE San Francisco Chapter Professional Development Conference

1. ASSE San Francisco ChapterProfessional Development Conference Current Trends at OSHA: What’s Hot in 2010 Fred Walter Walter & Prince LLP February 23, 2010 www.walterprincelaw.com

2. DOSH Enforcement • Heat Illness (cont’d) • Heat from the Feds • Heat on Controlling Employers (cont’d) • Heat on Employers re: penalties Table of Contents © Walter & Prince LLP 2009

3. OSHAB (The Appeals Board) • Heat from Labor, Legislature • Heat on Employers re: Abatement • Heat on Employers re: 342(a) Table of Contents © Walter & Prince LLP 2009

4. Worker’s Compensation Appeals Board • Serious & Willful Misconduct • Heat on Crane Owners Table of Contents © Walter & Prince LLP 2009

5. Superior Court and Beyond • MEW Controlling Employers • MEW: All Employer’s Duty to Report Hazards Table of Contents © Walter & Prince LLP 2009

6. 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 DOSH © Walter & Prince LLP 2009

7. 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 DOSH © Walter & Prince LLP 2009

8. 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 DOSH © Walter & Prince LLP 2009

9. 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. DOSH © Walter & Prince LLP 2009

10. Some Confusion on 342(a) • Who is an Employer for the purpose of reporting? • Can the Employer designate someone not an employee to report? DOSH © Walter & Prince LLP 2009

11. 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 DOSH © Walter & Prince LLP 2009

12. 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? DOSH © Walter & Prince LLP 2009

13. Aggressive Penalty Settlement Positions • Are penalties controlled by regulation? • Forget your defense, it was a serious injury. • Add: Stipulated penalties DOSH © Walter & Prince LLP 2009

14. 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 DOSH © Walter & Prince LLP 2009

15. 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 DOSH © Walter & Prince LLP 2009

16. 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].” DOSH © Walter & Prince LLP 2009

17. 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 Board(From our 2009 Presentation) © Walter & Prince LLP 2009

18. 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 Appeals Board © Walter & Prince LLP 2009

19. 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” Appeals Board © Walter & Prince LLP 2009

20. Beyond the Procedural Fight: • 342a reductions: not so fast • Are appealed criminal convictions admissible? Appeals Board © Walter & Prince LLP 2009

21. Continued increase in filings • Bigge Crane decision: • Crane operators as management Serious & WillfulMisconduct © Walter & Prince LLP 2009

22. The Harris Case (March, 2010) • Who has to prove controlling ER status? • Is an affirmative defense available? Superior Court and Beyond © Walter & Prince LLP 2009

23. California Court of Appeals • Suarez v. Pacific Northstar Mechanical, Inc. • All ER’s on MEW have duty to report hazards Superior Court and Beyond © Walter & Prince LLP 2009

24. Walter & Prince LLP • www.walterprincelaw.com • E-zines, articles and further links • Fed/OSHA Establishment Search • www.osha.gov/oshstats/index.html • Cal/OSHA Regulations • www.dir.ca.gov/samples/search/query.htm • Cal/OSHA Enforcement (DOSH) • www.dir.ca.gov/DOSH/dosh1.html • Cal/OSHA Appeals Board • www.dir.ca.gov/OSHAB/oshab.html Resources © Walter & Prince LLP 2009