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

The standard applies to the cited working The standard applies to the cited working conditions.conditions.

The terms of the standard were not complied The terms of the standard were not complied with.with.

Employees had access to the violative condition, Employees had access to the violative condition, and and

Knowledge of the violation. (The employer Knowledge of the violation. (The employer knew of the violative condition or could have knew of the violative condition or could have through the exercise of reasonable diligence.)through the exercise of reasonable diligence.) Are you inspecting the worksite often enough?Are you inspecting the worksite often enough?

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Employer can challenge: The standard applies to the cited working conditions.The standard applies to the cited working conditions. The terms of the standard were complied with.The terms of the standard were complied with. Employees had access to the violative condition, and Employees had access to the violative condition, and The employer knew of the violative condition or could The employer knew of the violative condition or could

have, through the exercise of reasonable diligence.have, through the exercise of reasonable diligence. Affirmative defensesAffirmative defenses ConstitutionalityConstitutionality

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AFFIRMATIVE DEFENSES

Commonly used by employers in Commonly used by employers in contested casescontested cases

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Affirmative Defenses

Unpreventable Unpreventable employee misconductemployee misconduct or or isolated incidence.isolated incidence.

ImpossibilityImpossibility \ Infeasible \ Infeasible Greater HazardGreater Hazard Multi-employerMulti-employer

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EMPLOYEE MISCONDUCT GENERAL PRINCIPLE

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

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UNPREVENTABILITY

General principle.General principle.““[An employer] [An employer] cannot fail to properly train cannot fail to properly train

and supervise its employeesand supervise its employees and then hide and then hide behind its lack of knowledge concerning behind its lack of knowledge concerning their working practices.”their working practices.”

IT IS NOT UNPREVENTABLE IF YOU IT IS NOT UNPREVENTABLE IF YOU ARE NOT EFFECTIVELY MANAGING.ARE NOT EFFECTIVELY MANAGING.

• What has been done to prevent it???What has been done to prevent it???

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Employer Can Establish An Employee Misconduct/ Unpeventability Defense By Showing:

Existence of an effective Existence of an effective safety programsafety program designed designed to prevent the violation.to prevent the violation.

Adequate safety instructions effectively Adequate safety instructions effectively communicated to employees. (communicated to employees. (TrainingTraining))

Means to discovering violations of instructions. Means to discovering violations of instructions. (Follow-up (Follow-up inspectionsinspections))

Enforcement of safety rules. (Enforcement of safety rules. (DisciplineDiscipline))

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

COURTSCOURTS Effort to identify Effort to identify

hazardshazards Establish work rulesEstablish work rules Effective Effective

communication of work communication of work rule (training)rule (training)

Inspection (follow-up)Inspection (follow-up) Effective enforcementEffective enforcement

MANAGEMENT GUIDELINESMANAGEMENT GUIDELINES Employer commitmentEmployer commitment Employee involvement Employee involvement Workplace analysesWorkplace analyses Hazard prevention and Hazard prevention and

controlcontrol Safety and health trainingSafety and health training

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GREATER HAZARDGREATER HAZARD

GENERAL PRINCIPLE:GENERAL PRINCIPLE: Even if the employer demonstrates that his method Even if the employer demonstrates that his method

is is less hazardous than complianceless hazardous than compliance, he may not be , he may not be able to disprove that there were feasible alternative able to disprove that there were feasible alternative protective methods.protective methods.

The Review Commission has been The Review Commission has been rejecting this rejecting this affirmative defense if:affirmative defense if:

The compliance officer has been able to demonstrate a The compliance officer has been able to demonstrate a feasible method of abatement, orfeasible method of abatement, or

Employer has not applied for a VarianceEmployer has not applied for a Variance

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IMPOSSIBILITY DEFENSEIMPOSSIBILITY DEFENSE ELEMENTSELEMENTS

Compliance is Compliance is functionally impossible or would prevent functionally impossible or would prevent performances of required workperformances of required work; and ; and

There are There are no alternative means of employee protectionno alternative means of employee protection..

The first element above may take either The first element above may take either of two forms:of two forms: The regulation can be complied with, but the employer can The regulation can be complied with, but the employer can

demonstrate that such demonstrate that such compliance would preclude compliance would preclude performance of work;performance of work; or or

The employer proves that it is The employer proves that it is physically impossible for the physically impossible for the employer to complyemployer to comply with the cited regulation. with the cited regulation.

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IMPOSSIBILITY DEFENSEIMPOSSIBILITY DEFENSE

ELEMENT - 2ELEMENT - 2 Alternative means of employee protection are Alternative means of employee protection are

unavailableunavailable,,

To establish this element of the defense To establish this element of the defense the employer must demonstrate that:the employer must demonstrate that:

He used adequate alternative measures or that alternative He used adequate alternative measures or that alternative measures were completely unavailablemeasures were completely unavailable..

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MULTIEMPLOYER WORKSITE POLICY

Field Operations ManualField Operations Manual

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Multi-employer Worksites

Both construction and non-constructionBoth construction and non-construction Citations normally issued to exposing Citations normally issued to exposing

employeremployer Employers may be cited whether or not Employers may be cited whether or not

their own employees are exposedtheir own employees are exposed

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Multi-employer WorksitesCitable Employers

Employer who actually creates the hazard (Employer who actually creates the hazard (creating creating employeremployer))

Employer who has employees exposed to the hazard Employer who has employees exposed to the hazard ((exposing employerexposing employer))

Employer responsible by contractEmployer responsible by contract Employer who has authority for ensuring Employer who has authority for ensuring

hazardous condition is corrected (hazardous condition is corrected (controlling controlling employeremployer))

Employer who has responsibility for correcting the Employer who has responsibility for correcting the

hazard (hazard (correcting employercorrecting employer))

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MULTIEMPLOYER

Affirmative defenseAffirmative defense an exposing employer an exposing employer can use to challenge and OSHA citationcan use to challenge and OSHA citation

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Legitimate Defense for Exposing Employer

Did not create the hazardDid not create the hazard Did not have the responsibility or authority to have hazard Did not have the responsibility or authority to have hazard

correctedcorrected Did not have ability to correct or remove the hazardDid not have ability to correct or remove the hazard Specifically notifies controlling/correcting employer of the Specifically notifies controlling/correcting employer of the

hazardhazard Instructed employees to recognize and avoid hazardsInstructed employees to recognize and avoid hazards Took appropriate steps to protect employeesTook appropriate steps to protect employees

In extreme circumstances, removes employeesIn extreme circumstances, removes employees

KCAO Enforcement SummaryFiscal Year 2011

Total Inspections = 676Total Inspections = 676 % in-compliance inspections = 17.9%% in-compliance inspections = 17.9% % Construction Inspections = 58.6%% Construction Inspections = 58.6% % Serious Violations = 90%% Serious Violations = 90% Average $ per violation = $3519Average $ per violation = $3519 # accident Investigations = 12# accident Investigations = 12 # Complaints handled = 329# Complaints handled = 329 # Significant Cases = 3# Significant Cases = 3

FY 2011 Top 10 Most Cited Standards(Construction Industry)

ScaffoldingScaffolding Fall ProtectionFall Protection LaddersLadders Fall Protection, Fall Protection,

Training RequirementsTraining Requirements Hazard Hazard

CommunicationCommunication

General Safety & Health General Safety & Health ProvisionsProvisions

Head ProtectionHead Protection Aerial LiftsAerial Lifts Eye & Face ProtectionEye & Face Protection Specific Excavation Specific Excavation

RequirementsRequirements

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

Understand Accident Causes

Accidents are caused by:Accidents are caused by:

Unsafe Unsafe conditionsconditions Unsafe Unsafe actsacts

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

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SAFETY PAYS!!!

THANKS!!!THANKS!!! Mark BandenMark Banden

(816) 217-3274, CELL(816) 217-3274, CELL Banden.Mark@dol.govBanden.Mark@dol.gov