OSHA/MIOSHA INSPECTIONS AND CITATIONS

1. OSHA/MIOSHA INSPECTIONS AND CITATIONS Presented by Thomas F. Waggoner 269/982-7715 twaggoner@lawssa.com

2. What you will learn • History of OHSA/MIOSHA • Application to Architects/Engineers • MIOSHA Inspection Procedures • MIOSHA citations • Appeal citations • Informal Settlement Agreements • What to do before the MIOSHA interview

3. History of MIOSHA OSHA stands for the Occupational Safety and Health Administration, an agency of the U.S. Department of Labor OSHA’s responsibility is to improve worker safety and health protection • On December 29, 1970, President Nixon signed the OSH Act • This Act created OSHA, the agency, which formally came into being on April 28, 1971 • Public Act 154 of 1974 created MIOSHA, and agency of the Department of Licensing and Regulatory Affairs • Became effective January 1, 1975 for private sector employers and July 1, 1975 for public sector employers

4. MIOSHA’S Mission • The mission of MIOSHA is to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. • MIOSHA applies to all public and private sector places of employment in Michigan, except Federal employees, USPS, domestic employment, maritime and mining. • Some of the things OSHA does to carry out its mission are: • Developing job safety and health standards and enforcing them through worksite inspections • Providing training programs to increase knowledge about occupational safety and health

5. MIOSHA’s Organization • Construction Safety & Health Division • General Industry Safety & Health Division • Employee Discrimination Section • MIOSHA Appeals Division • Management Information Systems Section • Consultation Education and Training Grant Program • MIOSHA Standards Section • General Industry Safety Standards Commission • Construction Safety Standards Commission • Occupational Health Standards Commission • Consultation Education and Training

6. What are OSHA Standards? • Rules that describe the methods employers must use to protect employees from hazards • Designed to protect workers form a wide range of hazards • Limit the amount of hazardous chemicals, substances, or noise that workers can be exposed to • Require the use of certain safe work practices and equipment • Require employers to monitor certain hazards and keep records of workplace injuries and illnesses • The standards published as 29 CFR Part 1926 have been adopted. They apply to every employee engaged in construction work.

7. DO THE OHSA STANDARDS APPLY TO ARCHITECTS AND ENGINEERS? • Architect’s and Engineer’s own employees? Yes • Draft Health and Safety Plan • Familiarize self with and comply with site-specific Health and Safety Plan of Party in Control of the Construction Site • Provide and use Personal Protective Equipment • Employees of others? Yes, in certain situations • Is Architect or Engineer a “controlling employer” • Factors considered by OSHA • The extent to which the employer is involved in the multitude of different sorts of activities that are necessary for the completion of the typical construction project, and • The degree to which design professional is empowered to direct or control the actions of the trade contractors

8. DO THE OHSA STANDARDS APPLY TO ARCHITECTS AND ENGINEERS? • An architect who merely provides drawings and specifications is not a controlling employer • Construction Manager that did not have authority to control safety hazards, but could only report them to the owner is not a controlling employer • What if your contract says that as part of your contract administration services Architect/Engineer must “endeavor to guard the Owner against defects and deficiencies in the Work.” • What if your contract says: “Architect/Engineer will comply with all laws, rules, and regulations”, rather than “review laws, codes, and regulations applicable to the Architect’s/Engineer’s services.” AIA Standard Form of Agreement B101

9. MIOSHA Inspections The reason for an inspection: • Imminent Danger • Fatality/Catastrophe Investigations • Employee Complaints • Accident Investigations • Routine Safety Inspections • Follow-up Inspections • Referrals from other agencies • Visual Activity (Construction) • Dodge Reports (Construction) • Division Instruction – Construction Inspection Targeting handout

10. Steps to Construction Site Inspection • Opening Conference • Interviews • Records Review • Walkaround • Closing Conference • Citation Notice • Appeal Process • Informal Settlement Agreements • MIOSHA Penalty Reduction System

11. Opening Conference • Voluntary vs. Compulsory Process • Time of Inspection – reasonable time • Presentation of Credentials – typically to representative of GC • Purpose of Inspection (provide copy of complaint if applicable) • What is the employer’s worksite in the construction industry • Generally the site where the construction is being performed • Joint and Separate Employer and Employee conferences • Explain Scope of Inspection – comprehensive or partial, interviews, physical inspection of workplace and records, closing conference • Multi-employer sites

12. Interviews • Authorized to question employees privately during regular work hours • Purpose is to obtain information necessary or useful to inspection • Conducted in a reasonable manner and normally during the walk around, but can be conducted at another location • Employee representative (i.e. ask for supervisor, lawyer?) • Interviewee Statements reduced to writing • Written in first person • Changes initialed • Encouraged to sign and date the statement • Refusal to sign noted • “I have read the above, and it is true to the bet of my knowledge” • May be used in court

13. Records Review • The compliance officer may review all required MIOSHA record keeping document and required written programs and procedures such as safety programs. • Compliance officer may request plans, specifications, daily logs, etc . . .

14. Walkaround • Main purpose is to identify potential safety and or health hazards • Collect samples • Photographs and videotapes • Record all facts pertinent to an apparent violation • Apparent violations should be brought to the attention of employer and employee representatives at time they are documented • identify affected employee • identify hazard • identify employee’s proximity to hazard • record employer’s knowledge of condition • record manner in which important measures obtained

15. Closing Conference At the conclusion of the inspection, the officer shall conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. The closing conference may be conducted on site or by telephone • If separate conferences, employee conference first • Second Closing Conference if all information not obtained • Notify employer and employee of apparent violations • Follow up inspections – to ensure violations corrected

18. Appeal Process MIOSHA provides a two-step process for employers to appeal citations or request an Informal Settlement Agreement if not appealing: • First Appeal: All or part of a citation may be appealed within 15 working days of receipt of the citation to the MIOSHA Division that issued the citation. • Second Appeal: A second appeal may be filed within 15 working days upon receipt by the employer of the results of the fist appeals process. • Board of Health, Safety Compliance and Appeals sends notice of prehearing, indicating date, time and location of an informal hearing • If issue not resolved, a formal hearing held before Administrative Law Judge • Decisions of ALJ may be appealed to full seven member board • Once administrative appeal procedures exhausted, may appeal to circuit court.

19. Informal Settlement Agreements (ISA’s) Within 5 working days of receipt of citation, but no later than 13th workday beyond receipt of citation, employer may: • make a written or telephone or facsimile request to the division issuing citation • Potentially adjust penalties up to 50% of the proposed penalty • Requirements of employer: • Not appeal further • Correct all violations as specified in ISA • Pay proposed penalties as specified in ISA • Provide assurance of abatement as requested • Immediately post ISA • Continue to comply with MIOSHA requirements • MIOSHA Penalty Reduction System Initiative

20. MIOSHA’S PERSPECTIVEWhat Is An Accident? An unplanned, unwanted, but controllable event which disrupts the work process and causes property damage or injury to people.

21. Accidents Don’t Just Happen • An accident is not “just one of those things”. • Accidents are predictable and preventable events. • They don’t have to happen.

22. Root Cause Analysis • Direct Cause – Unplanned release of energy or hazardous materials • Indirect Cause – Unsafe acts and/or unsafe conditions • Root Cause – policies and decisions, plans and specifications, personal factors, environmental factors Root cause analysis is a systematic technique that focuses on finding the real cause of a problem and dealing with that, rather than just dealing with its symptoms. A root cause is the cause that, if corrected, would prevent recurrence of this and similar occurrences. A root cause of a consequence is any basic underlying cause that was not in turn caused by more important underlying causes.

23. The Five Whys • Basic Question - Keeping asking “What caused or allowed this condition/practice to occur?” until you get to root causes. • The goal of applying the 5 Whys method is to determine a root causeof a defect or problem. The following example demonstrates the basic process: My car will not start. (the problem) 1) Why? - The battery is dead. (first why) 2) Why? - The alternator is not functioning. (second why) 3) Why? - The alternator belt has broken. (third why) 4) Why? - The alternator belt was well beyond its useful service life and has never been replaced. (fourth why) 5) Why? - I have not been maintaining my car according to the recommended service schedule. (fifth why and the root cause)

24. Begin Fact Finding Immediately • It’s crucial to “find out the facts” as soon as possible and before MIOSHA interview because evidence will disappear and people will forget, including you

25. Fact Finding • Witnesses and physical evidence • Employees/other witnesses • Position of tools and equipment • Daily logs, charts, records • Plans and Specifications

26. Fact Finding • Take notes on environmental conditions (weather, lighting, time) • Note general working environment • Take samples, if applicable • Note working conditions • Take photographs • Diagram the scene

27. Consultation Education and Training Division offers… Need further help? • Provides free in-house MIOSHA safety and health education, training and consultation services • Maintains library of safety publications • Lends videos • Distributes publications at no cost www.Michigan.gov/cet (517) 322-1809