An OSHA (Occupational Safety and Health Administration) or VOSH (the Virginia equivalent) inspection can be stressful. Knowing what to do during an inspection can go a long way to relieving this stress.

Check out this SlideShare Presentation regarding a contractor’s rights when the Safety Inspector shows up at a job site. This is the PowerPoint from a presentation I have done several times around the Commonwealth of Virginia. The presentation goes well with my VOSH Inspection Checklist.

As always, I welcome your comments.  Please subscribe to keep up with the latest Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we welcome Josh Johnson.  Josh is a friend and a litigation attorney at Gentry Locke Rakes & Moore, LLP in Roanoke, Virginia.  He practices in several areas, including construction law.  Josh graduated from the University of Virginia School of Law in 2005, and he has been associated with Gentry Locke since 2007. Josh has represented large and small businesses in OSHA matters in various locations in the Commonwealth, and he has represented owners, contractors, subcontractors, sureties, architects and engineers in all manner of construction litigation.

OSHA remains on the front lines of the political debate between pro-workplace safety advocates and pro-business advocates. Under the Obama administration, OSHA has received more prominence and financial support than under previous administrations. As of last Fall, OSHA’s penalty framework was revised to increase penalties. OSHA and its supporters argue that these changes were necessary to enforce compliance and to encourage worker safety; they also argue that the old penalty framework was outdated. OSHA’s detractors argue that the increased penalties and enforcement threaten jobs and hurt businesses in an already tough economy.

In February 2009, the Obama administration presented its budget blueprint, and it sought to increase funding for OSHA, “enabling it to vigorously enforce workplace safety laws.”

In 2010, OSHA indicated that it would be taking steps to create adequate incentives to increase compliance with OSHA’s requirements. OSHA determined that the best way to do so would be through higher penalties and more aggressive, targeted enforcement.

Then, effective October 1, 2010, OSHA made several changes to its penalty calculation system. According to OSHA, these monetary penalties had only been increased once in the last 40 years and those increases occurred back in 1990.

The OSHA penalty calculation system is an interesting and logical computation. When OSHA discovers a violation, it initially cites the employer with a penalty that could be decreased if the employer meets certain criteria. These criteria can have a large impact on the amount of the penalty. In the past, OSHA generally (with some notable exceptions) reduced penalties based on the following criteria:

1.         History Reduction.  Employers who had not been cited by OSHA for any serious, willful or repeated violations within the past three years receive a reduction of 10%.

2.         Good Faith.  An employer who has shown “good faith” could receive a penalty reduction of up to 25%.  There are a number of factors that go into the determination of whether an employer has shown good faith.

3.         Size Reduction.  OSHA used to decrease its penalty by 60% for employers with 1 – 25 employees; by 40% for employers with between 26 – 100 employees; by 20% for employers with 101 – 250 employees; and no reduction was allowed for businesses with more than 250 employees.

As of October 1, 2010, OSHA made a number of changes to the above penalty adjustment factors, and they made various changes to the way that penalties are calculated

The following is a list of the 9 changes that are taken directly from OSHA’s website:

1.       History Reduction. The time frame for considering an employer’s history of violations will expand from three years to five. An employer who has been inspected by OSHA within the previous five years and has not been issued any serious, willful, repeat, or failure-to-abate citations will receive a 10 percent reduction for history.

2.       History Increase. An employer that has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate violation within the previous five years will receive a 10 percent increase in their penalty, up to the statutory maximum. Employers who have not been inspected and those who have received citations for serious violations that were not high gravity will receive neither a reduction nor an increase for history.

3.       Repeat Violations. The time period for considering the classification of repeated violations will be increased from three to five years.

4.       Severe Violator Enforcement Program. Where circumstances warrant, at the discretion of the Area Director, high gravity serious violations related to standards and hazards identified in the SVEP will not normally be grouped or combined, and may be cited as separate violations, with individual proposed penalties.

5.       Gravity-Based Penalty (GBP). The gravity of a violation is the primary consideration in calculating penalties and is established by assessing the severity of the injury/illness which could result from a hazard and the probability that an injury or illness could occur. OSHA is adopting a gravity-based penalty structure for serious citations which will range from $3,000 to $7,000.

6.       Size Reduction. OSHA will be amending its penalty reduction structure based on the size of employers, allowing for a penalty reduction between 10 and 40 percent for those with less than 250 employees. No size reduction will be applied for employers with 251 or more employees.

7.       Good Faith. The current good faith procedures in the Field Operations Manual will be retained. A penalty reduction is permitted in recognition of an employer’s effort to implement an effective workplace safety and health program. Employers must have a safety and health program in place to get any good faith reduction. Good faith reductions are not allowed in the cases of high gravity serious, willful, repeat, or failure-to-abate violations.

The 15% Quick-Fix reduction, which is currently allowed as an abatement incentive program to encourage employers to immediately abate hazards identified during inspections, remains unchanged. However, the 10% reduction for employers with a strategic partnership agreement will be eliminated.

8.       Minimum Penalties. The minimum proposed penalty for a serious violation will be increased to $500. When the proposed penalty for a serious violation would amount to less than $500, a $500 penalty will be proposed for that violation. The proposed minimum penalty for a posting violation will increase to $250 if the company was previously provided a poster by OSHA.

9.       Additional Administrative Modifications to the Penalty Calculation Policy. Final penalties will be calculated serially, unlike the current practice where all penalty reductions are added and the total percentage of reductions is then multiplied by the gravity-based penalty to arrive at the proposed penalty. All penalty adjustment factors will be applied serially.

Although it is certainly not clear that these changes alone have caused any political backlash, it is interesting to note that on March 1, 2011, news sources report that congressional Republicans have proposed cutting OSHA’s budget by 20%. They have targeted OSHA for a $99 million dollar reduction in funding.  In an article on NPR’s website, Michigan Republican Congressman Tim Walberg was quoted as stating that,

[o]ver the last two years, OSHA has not only attempted to implement several policy changes that would have profound impact on the workplace; it has become an administration more focused on punishment than prevention, . . .our goal should be to prevent workplace accidents before they happen, not simply shame an employer once a tragedy has occurred on the job site.

On the other hand, in the article, OSHA’s director has said that these proposed budget cuts would be devastating on the agency’s efforts to protect worker safety.

While the political back and forth is certainly interesting, for employers, and in particular those in the construction industry, we have to focus on the law that is in place now. These changes considerably increase employer’s potential liability for failing to comply with the OSHA regulations. As a starting point, it is always a good idea to determine whether your company is in compliance. And, if OSHA cites your business, then it is advisable to consult a construction lawyer to handle what may likely be more difficult negotiations than occurred in the past.

Although the Virginia Department of Labor and Industry (Virginia OSH) has not yet adopted these changes to the penalty calculation structure, Virginia may ultimately enforce these new changes or some variation of the changes.

Many thanks to Chris for letting me guest post here on Construction Law Musings.

Josh and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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For this week’s Guest Post Friday we welcome, Anna E. Jolly, JD, CHMM.  Anna is a partner in the consulting firm, Circle Safety and Health Consultants, LLC.  Anna has been an OHS professional for over 30 years and is licensed to practice law in the Commonwealth of Virginia.  She is also a member of the Virginia Safety and Health Codes Board.   Anna has the ability to integrate technical and legal requirements relating to occupational safety and health regulations so that her clients keep their employees safe, follow the regulatory requirements and accomplish the goals of their business.  Her favorite projects involve assisting clients through the Virginia Occupational Safety and Health regulatory process

So your client just got cited by Virginia Occupational Safety and Health (VOSH) and wants you to make it go away. So you are a hot-shot attorney, what can be so hard about this? It is just a small regulatory agency. Well, you have to know a few things about OSHA in general and Virginia’s version specifically in order to get the best outcome.

First thing to know is that your client has 15 working days to do something. If he does nothing, he pays full price. This is like your court filing deadline; if you miss it, you’re out of luck. So, schedule your informal contest and/or submit your notice of contest.  In Virginia you can still have an informal after you submit a notice of contest.

As an OSH professional and lawyer, the first thing that needs to be done is to conduct a technical review of the citations. Are they cited properly? I have found improperly cited violations fairly frequently. Of course, in Virginia they can change them to the proper section, but catching the mistake shows them you know what you are doing.  If you don’t know a trench box from a torque wrench, get a safety professional to review it for you. Look at the OSHA regulations cited and the interpretations that go along with this. Get all the photos and facts from this, just as you would for any case you’d take to litigation.

Don’t look past the informal conference; it is the most important event in the process. This is where most cases get settled. It is great to review case law ‘til dawn, but this meeting is with an administrator, not a judge, or even a lawyer, so his take on this is different.  I am sure you will do a great job when you get to court, but your client will be a lot poorer than he would be if you settled at the informal.

Virginia is a “state plan” state, so the VOSH program has a number of rules that are different from Federal OSHA rules. Be sure to review the VOSH Administrative Regulations Manual and the Field Operations Manual. These two documents are chockfull of the procedures that VOSH must follow to do business. Both documents are available on the (VOSH) website at www.doli.virginia.gov.

You are ready to go to the informal now. If you can get the case knocked out because citations were incorrect, it was employee misconduct, the client’s employees were not exposed, or other technical matters, then everyone is happy. Present VOSH with documentation such as training records or disciplinary records to prove the case. Just give them the documents that prove your case, not five pounds of paper. They won’t do your work for you.

Getting them vacated is rare, especially if your client really did what was cited. You can always get a reduction of some type.  Regional Directors can reduce penalties by 40% without breaking a sweat. You have to prove more to vacate or reduce the classification. Payment plans are even available.

Don’t take everybody and their brother to the informal. That is intimidation and it does not work. I don’t have a set formula, but I always have a high level management person or the owner in a small business. This shows management commitment. I may or may not take the foreman or supervisors involved. If there are incorrect factual issues, he goes. If he needs to have “the fear put in him”, he goes. As for the rest, the company safety person and/or your safety consultant generally has something to contribute. Don’t take people who have nothing to contribute.

There is no need to be argumentative. If you have a hot-headed client, try to keep him quiet. If you have a client who wants to say, “This is unfair and we have a good safety record and you are picking on me” and he won’t let it go, let him go first and say his piece, and then get down to business. If not, he will be on simmer the whole time and might blow!

Arguments that they have heard a million times, and which are not winners, include:

1. We can’t have this on our excellent safety record.
2. Your inspector was picking on us and behaved badly.
3. You shouldn’t cite me because I have a good safety program.
4. I know the Governor or any other high ranking public official.
5. You shouldn’t cite me, the economy is bad.

Remember, they are citing items with the potential for injuries, illnesses, and deaths; you don’t get to kill more people because the economy is bad.

So, if you don’t get what you want, then you can go forward. In Virginia, this goes to court rather than to an administrative law judge. The legal department at VOSH will take the case forward and may make additional settlement offers. It may be a year or more before they get their day in court, so the best advice is to get all of the facts down on paper immediately. Then you can remember the issues if you get that far. It is only then that you get to use your lawyerly wiles on a judge.

Fortunately, most cases are settled at the informal conference so that the system doesn’t get clogged up with these cases and your client doesn’t have to pay a fortune.

I specialize in the period from inspection to informal conference; I’ll call you if they want to go to court!

Anna and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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Last week, I spoke at the 15th Annual Virginia Occupational Safety and Health (“VOSH”) Conference.  I always enjoy speaking at these events because I always learn something.  This year I spoke on the topic of record keeping and how to handle a VOSH or OSHA inspection (you can find a copy of the slides that I used here).  I have given this talk several times to different audiences and get a different set of questions each and every time.

The audience at this particular conference was a mix of VOSH personnel and safety officers for various construction companies.  My talk is very much directed at contractors and how to better work with the paperwork and the VOSH inspectors.  While having actual VOSH employees in the audience, instead of just contractors, I had to make sure that my approach was more balanced.  I even got a comment from a regional director at VOSH about this more balanced approach.

Even more than the actual talking, I gained some insight (as I do at each of these) from the questions and comments of the attendees.  Many of the attendees have been in the safety game for years and have insightful questions and comments.  They also tend to share their real life experiences.  These experiences help me see the best way to give what I hope is practical advice to my clients.  In short, sometimes I learn as much as I teach.

Another great aspect of these conferences is the friendships made and rekindled (including my pals from Circle Safety).  Many of these folks come every year and many I only see at this conference.  Like the AGC conference, I always meet someone new and always spend some time with some people that I already know and then get to know them better.  As always, getting to know folks in a context aside from attorney-client only helps me be a better lawyer.

I recommend that you attend some of these trade conferences when you can.  You’ll learn something.  I know I did.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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In an unusual flurry of occupational safety related activity, the Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.

In Nat’l College of Business & Technology Inc. v. Davenport (.pdf), the Virginia Court of Appeals considered what constitutes a “serious” violation of the exposure to asbestos Virginia Occupational Safety & Health (VOSH) regulations.  The facts found by the Salem, Virginia Circuit Court were that employees of the petitioner college were exposed to asbestos insulation when they were required to enter a boiler room to retrieve paper files.  However, no evidence was presented regarding the length of time or level of exposure at the Circuit Court level. Despite the lack of evidence regarding the level or extent of exposure, the Circuit Court upheld the VOSH citation for exposure and the level of violation at a “serious” level with the attendant penalty.

The Virginia Court of Appeals disagreed with the second finding.  The appellate court determined that the lack of evidence regarding the level of exposure (whether length or extent) made the serious level violation an error.  The Court stated that merely presenting evidence that asbestos is a carcinogen is not enough given the number of carcinogenic materials in existence and then remanded the case back to Circuit Court to reconsider the penalty level.

In a second case, Steel Erectors Ass’n of America v OSHA (.pdf ), the petitioner, SEAA, challenged a 2010 directive from OSHA regarding the enforcement of 2001 safety standards regarding steel construction, claiming that the enforcement change was an illegal regulation.  The 4th Circuit Court of Appeals, in an exercise of discretion, determined that SEAA or one of its members would need to challenge any attempt at enforcement when OSHA tried to invoke its new policy.  What the 4th Circuit said SEAA could not do was to challenge the enforcement policy without any pending enforcement action.

What these two cases show, aside from the fact that, yes, the Courts will occasionally look at these types of cases, is that not all cases are cut and dried.  With the assistance of an experienced Virginia construction lawyer, a construction professional may be able to challenge an administrative enforcement action.  Also, the help of such an attorney can certainly help head off a failed challenge such as that by SEAA with its attendant expense and headaches.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we welcome Vickie Lane.  Vickie is the primary point of contact for Business Development with HAZMAT Plans & Programs, a consulting and training firm that also works under the name of HP&P Safety.  Vickie’s functions with HP&P include extensive pre-project research and support though estimating, planning and cost administration.  Vickie attended Ohio State University and now enjoys her role as a first time grandmother and spending free time up in the Colorado Rocky Mountains.   Vickie can be reached at vlane@hppsafety.com or on Twitter @HAZMATPlans and @hpandpsafety.

Most of us perceive hazards on a construction site to be those that can be readily visualized or perhaps easily imagined, like trench cave-ins or falls from heights.  These are the obvious, but what about the nocuous, microscopic hazards that can’t be seen by the human eye, but can destroy the health of your workers?  Welcome to the world of hazardous materials.

The inherent danger associated with hazardous substances is workers might not be not aware of exposure.  Think of a snake in the dark scenario.  If it is a rattlesnake, you have warning before the bite.  A cobra on the other hand gives no such warning and the bite can be fatal.  So it can be with hazardous and toxic substances.

A few things to know:

1.  OSHA does not use the term HAZMAT.  OSHA refers to hazard materials as “hazardous and toxic substances”. HAZMAT is the term used by the DOT to refer to hazardous materials in transport.

2.  Standards that can apply to hazardous substance include OSHA, EPA, RCRA, your state’s Department of Health and Environment, and if in transport to or from locations, large quantities fall under DOT and PHMSA.   NIOSH has a wealth of health and safety information on work around toxic and hazardous substances.

NIOSH also provides studies of workplaces if workers or employers feel there has been exposure to hazardous and toxic substances.  This work is done under their Health Hazard Evaluation Program. More information on the HHE program can be found at http://www.cdc.gov/niosh/hhe/HHEprogram.html.

3.  Hazardous substances can be found in many shapes and forms including particulate, gas, vapor, mist, liquid, and dust.  Workers’ exposure to toxic substances can come from inhalation, skin contact, ingestion or eye contact.  This is where it is extremely important for contractor adherence to OSHA’s standards for Personal Protective Equipment.  The right gloves and respirators can be life savers.

4.  Identify the hazardous substances in your workplace.  Lead, Asbestos, Silica, Isocynates are  a few of the most common forms of toxic substances found on a construction site.   Excessive exposure to any of these can result in respiratory problems, lung damage, nervous system damage and future respiratory arrest……also, don’t forget the dust on your work clothes can endanger your family’s health too.

5.  Once again, remember multiple regulatory standards may apply.  OSHA standards apply with a current National Emphasis Program on Asbestos, Lead and Silica.  The EPA and “Your State” Department of Health also have regulations with an emphasis on Lead and Asbestos in construction.    Disregards regulations on work around on any of these hazardous substances and you could be looking at fines and penalties from OSHA, EPA and “Your State” – Not to mention the potential of lawsuits from workers and possible public exposure!

6.  Earthwork may involve soil contaminated with heavy metals or minerals.   OSHA requires HAZWOPER training for any workers who may be exposed to hazardous substances.  24 Hour training is required for the Occasional Site Worker such as project managers or truck drivers.  40 Hour HAZWOPER training is required for those who actually have the potential to exposure while working in the contaminated soil…..when calling for training, remember HAZWOPER not HAZMAT training.  We consultants can be easily confused!

7.  Keep a copy of MSDS sheets at the jobsite and in the main office.  Also, be sure to have a Hazard Communication Program and if need be, Respirator Program in place.  Employees who require respirators for work will also need to be trained and Fit-Tested.  A medical evaluation is required prior to fit-testing for all employees whose work will involve mandatory use of respirators and is suggested for those who voluntarily use elastomeric face pieces.

8.  Ensure that your Emergency Action Plan is up-to-date and in place.  Think BP.  Need I say more?  An EAP not only can protect your workers but our environment.

Work around hazardous and toxic substances can be complex and complicated.  Proper planning, education and PPE will help to protect your workers from that “snake in the dark”.  For more information, OSHA 29 CFR 1926 Subpart Z, Toxic and Hazardous Substances and OSHA 29 CFR 1926.65, Gases, vapors, fumes, dusts and mists.

As always Vickie and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday, Musings has the pleasure of welcoming Jan Thomas, President of Circle Safety & Health Consultants, LLC for her second Guest Post. Jan is an occupational safety and health professional with doctorate, over 30 years of experience at the federal, state and university levels, and professional certification. Her background includes regulatory compliance, accident and fatality investigations, development of policy and procedures, program management and extensive experience in education, training, research, technical writing, forensic consultation and expert witness testimony. She is also a friend of mine and can be found on LinkedIn or by e-mail.

We usually think about safety on construction sites with the focus on workers. The federal or state OSHA jurisdiction on commercial construction begins where an employer-employee relationship exists. In addition, CPL 2-0.124 –Multi-Employer Citation Policy dictates overall jobsite safety between contractors. So, when we need some basic guidance on safety we grab the OSHA standards.

But what about safety of the public – on adjoining streets or sidewalks, or across the fence in the school yard, or even across the intersection? What about invited visitors on site? OSHA is almost silent.

Some of the OSHA rules for protecting workers do secondarily protect the public. For example, OSHA requires placarding of parked equipment, barricading of open trenches or the swing-radius of a crane, and using flaggers at traffic work zones. But these are few and indirect.

What may be needed is an actual plan for public safety, especially at sites where the public is ever present (city streets) or in high-risk areas (near schools). Common sense may help guide such a plan but you may want to also check out a little-known consensus standard – ANSI/ASSE A10.34-2001 (R2005) Protection of the Public on or Adjacent to Construction.

Here is a quick review. The public is defined as “All persons and property not affiliated with the construction project. This includes invitees to the construction project who are not employed by the project constructor or contractors.” What about trespassers? They are excluded from the definition of the public. But, be sure to put up those No Trespasser signs to defend your property rights.

The consensus standard provides guidelines for developing a site-specific public hazard control plan and emergency action plan. Fourteen specific hazards are identified and the standard’s appendix provides a checklist. The consensus standard is fairly short but is a great place to start your thought process for extending safety beyond the boundaries of your construction site.

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http://documents.scribd.com.s3.amazonaws.com/docs/jg5pb1ilsujg14w.pdf?t=1271778294

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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Safety Codes Lack Standards For Critical Crane Repairs ENR: Engineering News Record McGraw-Hill Construction

A post from ENR about yet another safety failure by OSHA. Do we need more regulation or just better enforcement? Join the conversation and let me know.

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Just this past Friday, my good friend Tim Hughes (@vaconstruction) posted a somewhat scary update regarding the removal of the owner exception and expansion of the rules to commercial construction.  Tim gives a great analysis and also links to several prior posts at his Virginia Real Estate, Land Use & Construction Law blog regarding the topic.

Last Tuesday, another good friend and construction attorney in Massachusetts, Andrea Goldman (@andreagoldman) posted regarding the new documentation requirements for contractors.  She also linked to a very helpful post from remodeling expert Shawn McCadden relating to these requirements.  Andrea also was kind enough to guest post her wonderful thoughts relating to the important legal issues raised by this new lead paint regime.

For a slightly more contrarian, yet no less helpful, opinion piece on the economic impact of these rules, please check out my good friend Rick Provost’s (@remodelthink)  lead rule perspective at the Profitable Contractor blog.

For the safety perspective, check out the Circle Safety blog (@circlesafety) for their take on this new rule.

I hope that you find these resources helpful.  I like and respect all of the folks to whom I have linked here and would only be reinventing the wheel relating to the lead paint renovation rule by discussing this further.

I would love to hear your comments and suggestions relating to other resources relating to this new rule and its impact on contractors and subcontractors.  Please join the conversation on this timely topic.

UPDATE: The Homeowners Resource Center has a great update on the regs as well, check it out.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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