1. dwt.com OSHA/WISHA Inspections and Recent Developments ESD 113 Supervisors Safety Workshop Presented by: Jeffrey B. Youmans, Esq. September 30, 2016

2. dwt.com Today’s Presentation  Rights and obligations under OSHA and WISHA  How to respond to a WISHA inspection  Citations, penalties, and appeal  Recent developments – Penalty increases – New anti-retaliation provisions – Drug testing 1

3. dwt.com The Occupational Safety and Health Act (OSHA)  Enacted in 1970  Covers all non-government employees  Enforced by U.S. Department of Labor  Allows states to develop own safety and health standards 2

4. dwt.com The Washington Industrial Safety and Health Act (WISHA)  Washington is an approved “State Plan” state  WISHA covers all employers – including public employers – with one or more employees  Enforced by Washington Department of Labor & Industries 3

5. dwt.com OSHA v. WISHA  Vast majority of Washington employers covered by WISHA, not OSHA  State standards must be at least as protective as OSHA  WISHA requirements often exceed those under OSHA 4

6. dwt.com Key References  OSHA: 29 U.S.C. § 651 et seq.  OSHA regulations: C.F.R. Title 29  OSHA web site: www.osha.govwww.osha.gov  WISHA: RCW 49.17  WISHA regulations: WAC Title 296  WISHA web site: www.lni.wa.gov/wishawww.lni.wa.gov/wisha 5

7. dwt.com Employer Obligations  Each employer: – Shall furnish to each employee a place of employment free from recognized hazards causing or likely to cause serious injury or death – Shall comply with WISHA’s specific rules and regulations 6

8. dwt.com Employer Obligations (cont’d)  Monitor workplace conditions to ensure compliance  Minimize or reduce hazards  Provide safety devices, PPE, proper tools, etc.  Correct cited violations  No retaliation (more on that later) 7

9. dwt.com Employee Obligations  Expected to play active role in creating safe workplace  Must comply with all safety and health rules  Employees will not be cited – up to employers to enforce safety standards through training and discipline 8

10. dwt.com Inspections  Unprogrammed v. programmed  Inspector’s right of entry: without delay and at all reasonable times  Advance notice not required  Scope of inspection – usually not limited to subject of complaint 9

11. dwt.com Inspections (cont’d)  Presentation of credentials – To owner, manager, or agent in charge – Demand search warrant?  Opening conference  Walk-around 10

12. dwt.com Inspections (cont’d)  Employee interviews – In a “reasonable manner” – L&I can insist they be private for non-managers  Photos/videos/testing  Inspection of records  Closing conference  Union involvement 11

13. dwt.com Citations and Penalties  Must be issued within 6 months after inspection  Must specifically describe violation and cite standard  Will set reasonable time to abate hazard  Must be posted at work site 12

14. dwt.com Citations and Penalties (cont’d)  Serious violations: mandatory fine up to $7,000  General violations: discretionary fine up to $7,000  Willful and Repeat violations  Failure to abate  Criminal penalties 13

15. dwt.com Increased Penalties  OSHA’s new maximum penalties (nearly an 80% increase): – Serious violations: $12,471 per violation – Failure to abate: $12,471 per day – Willful or Repeat violations: $124,709 per violation  There will be additional cost-of-living increases each year  State Plans like Washington must adopt penalties at least as effective  WISHA will probably enact increased penalties to “catch up” with OSHA sometime next year 14

16. dwt.com The WISHA Appeals Process  Similar, but not identical, to the process under OSHA  Rules are at RCW 49.17 and WAC 263-12  Check L&I’s web site (www.lni.wa.gov) for materials explaining the processwww.lni.wa.gov 15

17. dwt.com Contesting WISHA Citations  Time limit for filing appeal – within 15 working days of receipt of Citation and Notice  Effect of filing Notice of Appeal – Prevents Repeat citations while appeal pending – Tolls running of abatement period for General violations – But an appealing employer must still seek stay of abatement for Serious violations 16

18. dwt.com The Stages of Appeal  Opportunities for settlement (including “Reassumption Conference”)  Hearing before administrative judge  Review by Board of Industrial Insurance Appeals  Appeal to Washington State courts 17

19. dwt.com New OSHA Anti-Retaliation Provisions  New rule requires employers to inform employees of their right to report work-related injuries free from retaliation  “You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately”  “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness”  New rule went into effect August 10, 2016 – but OSHA has delayed enforcement until November 1, 2016 18

20. dwt.com New OSHA Anti-Retaliation Provisions (Pt. 2)  The Old Regime: – OSHA Section 11(c) – The “Fairfax Letter” from 2012  The New Rule: – No longer complaint-driven; OSHA can cite an employer even if no one has complained of retaliation – More focus on employer programs and procedures as opposed to individual incidents or cases – Appears likely that OSHA will interpret it broadly 19

21. dwt.com New OSHA Anti-Retaliation Provisions (Pt. 3)  Questions and Issues Under the New Rule: – Discipline – Safety Incentive Programs – Drug Testing  What’s Next? – WISHA will probably enact its version of this new OSHA rule sometime next year 20

22. dwt.com Conclusion 21 Jeffrey B. Youmans Davis Wright Tremaine 1201 3 rd Avenue, Ste. 2200 Seattle, WA 98101 P: 206-757-8179 jeffreyyoumans@dwt.com