ELEMENTS OF A 5(a)(2) OSHA STANDARD VIOLATION (Prima Facie)

1. ELEMENTS OF A 5(a)(2) OSHA STANDARD VIOLATION(Prima Facie) • The standard applies to the cited working conditions. • The terms of the standard were not complied with. • Employees had access to the violative condition, and • Knowledge of the violation. (The employer knew of the violative condition or could have through the exercise of reasonable diligence.) • Are you inspecting the worksite often enough?

2. Employer can challenge: • The standard applies to the cited working conditions. • The terms of the standard were complied with. • Employees had access to the violative condition, and • The employer knew of the violative condition or could have, through the exercise of reasonable diligence. • Affirmative defenses • Constitutionality

3. AFFIRMATIVE DEFENSES • Commonly used by employers in contested cases

4. Affirmative Defenses • Unpreventable employee misconduct or isolated incidence. • Impossibility \ Infeasible • Greater Hazard • Multi-employer

5. EMPLOYEE MISCONDUCTGENERAL PRINCIPLE • If an employee is negligent or creates a violation, that does not necessarily prevent the employer from being held responsible for the violation.

6. UNPREVENTABILITY • General principle. • “[An employer] cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning their working practices.” • IT IS NOT UNPREVENTABLE IF YOU ARE NOT EFFECTIVELY MANAGING. • What has been done to prevent it???

7. Employer Can Establish An Employee Misconduct/ Unpeventability Defense By Showing: • Existence of an effective safety program designed to prevent the violation. • Adequate safety instructions effectively communicated to employees. (Training) • Means to discovering violations of instructions. (Follow-up inspections) • Enforcement of safety rules. (Discipline) SET EXPECTATIONS HOLD PEOPLE ACCOUNTABLE

8. COURTS Effort to identify hazards Establish work rules Effective communication of work rule (training) Inspection (follow-up) Effective enforcement MANAGEMENT GUIDELINES Employer commitment Employee involvement Workplace analyses Hazard prevention and control Safety and health training Safety And Health Program Elements:A “Regulatory Compliance” Perspective

9. GREATER HAZARD • GENERAL PRINCIPLE: • Even if the employer demonstrates that his method is less hazardous than compliance, he may not be able to disprove that there were feasible alternative protective methods. • The Review Commission has been rejecting this affirmative defense if: • The compliance officer has been able to demonstrate a feasible method of abatement, or • Employer has not applied for a Variance

10. IMPOSSIBILITY DEFENSE • ELEMENTS • Compliance is functionally impossible or would prevent performances of required work; and • There are no alternative means of employee protection. • The first element above may take either of two forms: • The regulation can be complied with, but the employer can demonstrate that such compliance would preclude performance of work; or • The employer proves that it is physically impossible for the employer to comply with the cited regulation.

11. IMPOSSIBILITY DEFENSE • ELEMENT - 2 • Alternative means of employee protection are unavailable, • To establish this element of the defense the employer must demonstrate that: • He used adequate alternative measures or that alternative measures were completely unavailable.

12. MULTIEMPLOYER WORKSITE POLICY Field Operations Manual

13. Multi-employer Worksites • Both construction and non-construction • Citations normally issued to exposing employer • Employers may be cited whether or not their own employees are exposed

14. Multi-employer WorksitesCitable Employers • Employer who actually creates the hazard (creating employer) • Employer who has employees exposed to the hazard (exposing employer) • Employer responsible by contract • Employer who has authority for ensuring hazardous condition is corrected (controlling employer) • Employer who has responsibility for correcting the hazard (correcting employer)

15. MULTIEMPLOYER • Affirmative defense an exposing employer can use to challenge and OSHA citation

16. Legitimate Defense for Exposing Employer • Did not create the hazard • Did not have the responsibility or authority to have hazard corrected • Did not have ability to correct or remove the hazard • Specifically notifies controlling/correcting employer of the hazard • Instructed employees to recognize and avoid hazards • Took appropriate steps to protect employees • In extreme circumstances, removes employees

17. KCAO Enforcement SummaryFiscal Year 2011 • Total Inspections = 676 • % in-compliance inspections = 17.9% • % Construction Inspections = 58.6% • % Serious Violations = 90% • Average $ per violation = $3519 • # accident Investigations = 12 • # Complaints handled = 329 • # Significant Cases = 3

18. Scaffolding Fall Protection Ladders Fall Protection, Training Requirements Hazard Communication General Safety & Health Provisions Head Protection Aerial Lifts Eye & Face Protection Specific Excavation Requirements FY 2011 Top 10 Most Cited Standards(Construction Industry)

19. Without a good safety program, you could end up with your a$$ in a sling!

20. Understand Accident Causes • Accidents are caused by: • Unsafe conditions • Unsafe acts

21. Safety And Health Program Elements:A “Beyond Regulatory Compliance” Perspective

22. SAFETY PAYS!!! • THANKS!!! • Mark Banden • (816) 217-3274, CELL • Banden.Mark@dol.gov