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Cal/OSHA: The Rules Have Changed. Have you?

Learn about the changes in Cal/OSHA rules and how to prepare for inspections and defend against serious citations. Get the tools and knowledge you need to comply with safety regulations.

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Cal/OSHA: The Rules Have Changed. Have you?

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

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

  3. The Division • Enforcement of Safety Orders • Permitting • Consultation • BOI Walter & Prince LLP - 2013

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

  5. 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

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

  7. 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

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

  9. 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

  10. 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

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

  12. 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

  13. 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

  14. 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

  15. When to Expect an Inspection • Complaints • Accidents • High Hazard Employers (Ex-mod > 1.25) • Industry Sweeps (Heat, etc.) Walter & Prince LLP - 2013

  16. 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

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

  18. 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

  19. 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-to-wall” • Phone a Friend Walter & Prince LLP - 2013

  20. 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

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

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

  24. 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

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

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

  27. 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

  28. 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

  29. 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, what could have prevented this?” • Watch for leading questions • “So she was a slow learner, huh?” Walter & Prince LLP - 2013

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

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

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

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

  34. The Document Request • 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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  36. 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

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

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

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

  41. 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

  42. 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

  43. 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

  44. 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

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

  46. Resources • Walter & Prince LLP • www.walterprincelaw.com • E-zines, articles and further links • http://www.caloshablog.com/ • Erratic blog on timely issues • 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 Walter & Prince LLP - 2013

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