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Legal - Effective emergency planning critical to managing OSHA investigations and rising incident penalties

image Ian Faria, Partner, Bradley Arant Boult Cummings LLP, Houston, TX

AUSTIN - The stated purpose of the Occupational Safety and Health Administration (OSHA) 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.” OSHA has promulgated various standards to create rules employers must use to protect their employees from hazards.

 

    Paramount to OSHA’s standards is OSHA’s General Duty Clause, which provides that each employer:• SHALL furnish employees place of employment free from recognized hazards that cause or are likely to cause death or serious harm; and
    • SHALL comply with OSHA standards.
    The General Duty Clause also provides that each employee:
    • SHALL comply with OSHA standards and rules applicable to his own actions and conduct.
    Typically, OSHA utilizes the General Duty Clause as its “catch-all” standard when no other standard applies.  This clause and others are used to assess citations and penalties against employers for violations.  The penalties themselves have significantly increased in the last three years. 
    In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. That new law directed agencies to adjust their civil monetary penalties for inflation every year, limited to any penalty for a specific amount or maximum amount set by federal law that is assessed or enforced by a federal agency. As a result, the Department of Labor adjusted penalties
for its agencies, including OSHA.
    OSHA’s maximum penalties, which were last adjusted in 1990, increased by 78 percent. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.
    The increased penalties mandated by OSHA took effect after Aug. 1, 2016. Any citations issued by OSHA on or after that date were subject to the new penalties if the related violations occurred after Nov. 2, 2015. For serious violations and for failure to abate (per day beyond the abatement date), the maximum penalty per violation increased from $7,000 to $12,934 (the latter amount is adjusted for inflation as of Jan. 2, 2018). For willful or repeated violations, the maximum penalty per violation increased from $70,000 to $129,336 (also adjusted for inflation).
    With the citation penalty amounts ever increasing, along with even more activity by OSHA in Texas, employers have to be proactive in their culture of safety, documentation and training.  In the event that there is an event that requires notification of OSHA, there are several opportunities to improve the inevitable investigation and penalties that flow from the event. 
    Your company’s emergency action plan should be regularly reviewed and utilized when an incident occurs.   It is important that a company craft a useful emergency action plan and not use a “canned” plan that it may find from a third party or on the Internet.  Emergency action plans need to be company specific taking into account the company’s resources and needs.  If a company does have an emergency action plan, then it should be followed by all individuals who are part of the investigation team.
    An emergency action plan should, at a minimum, include the following:
•    Selecting an internal investigation point person;
•    Securing the scene;
•    Determining OSHA reporting requirements and reporting the incident as required;
•    Determining if other entities must be notified (Police, Fire, EPA, NTSB, etc.);
•    Talking to witnesses;
•    Potentially taking witness statements;
•    Taking photographs of the scene;
•    Preservation of the scene and evidence;
•    Implementing protocols for unauthorized photography/social media interactions;
•    Identifying all personnel/contractors onsite; and
•    Identifying all personnel/contractors involved with incident.
    Combined with proper safety training, an effective emergency action plan can be of great importance in how OSHA investigates and determines citations and penalties.   Of course, continuing review and improvement of all safety programs and policies to avoid incidents should be of paramount importance.  However, when accidents occur, companies and employers should be diligent in their investigations with OSHA to prevent reoccurrence. 
    Ian P. Faria is a member of the Construction and Government Contracts Practice Group and Managing Partner of the Houston office of Bradley Arant Boult Cummings LLP. He represents developers, general contractors, subcontractors, homebuilders, business owners and individuals in a variety of disputes, as well as in OSHA compliance and investigation matters. He can be reached at ifaria@bradley.com.


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