1. OSHA/MIOSHA INSPECTIONS AND CITATIONS
Presented by Thomas F. Waggoner
269/

2. What you will learn History of OHSA/MIOSHA
Application to Architects/Engineers
MIOSHA Inspection Procedures
MIOSHA citations
Appeal citations
Informal Settlement Agreements
What to do before the MIOSHA interview
Invite participants to think about the difference between incident and accident. Tell them to think about it because we will talk about it later.
For the bullet: What RESULTS are you looking for: This would include removing or minimizing the potential for another occurrence. To seek to minimize the pain and suffering, equipment damage, loss of morale. Empower employees by having a system to address unsafe conditions or acts before other or more serious injuries occur
As part of the bullet on WISHA requirements wee will discuss:
When are you required to notify LNI?
When are you required to conduct an investigation?
What is required to be in the investigation?

3. History of MIOSHA
OSHA stands for the Occupational Safety and Health Administration, an agency of the U.S. Department of Labor
OSHA’s responsibility is to improve worker safety and health protection
On December 29, 1970, President Nixon signed the OSH Act
This Act created OSHA, the agency, which formally came into being on April 28, 1971
Public Act 154 of 1974 created MIOSHA, and agency of the Department of Licensing and Regulatory Affairs
Became effective January 1, 1975 for private sector employers and July 1, for public sector employers

4. MIOSHA’S Mission
The mission of MIOSHA 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.
MIOSHA applies to all public and private sector places of employment in Michigan, except Federal employees, USPS, domestic employment, maritime and mining.
Some of the things OSHA does to carry out its mission are:
Developing job safety and health standards and enforcing them through worksite inspections
Providing training programs to increase knowledge about occupational safety and health

5. MIOSHA’s Organization
Construction Safety & Health Division
General Industry Safety & Health Division
Employee Discrimination Section
MIOSHA Appeals Division
Management Information Systems Section
Consultation Education and Training Grant Program
MIOSHA Standards Section
General Industry Safety Standards Commission
Construction Safety Standards Commission
Occupational Health Standards Commission
Consultation Education and Training

6. What are OSHA Standards?
Rules that describe the methods employers must use to protect employees from hazards
Designed to protect workers form a wide range of hazards
Limit the amount of hazardous chemicals, substances, or noise that workers can be exposed to
Require the use of certain safe work practices and equipment
Require employers to monitor certain hazards and keep records of workplace injuries and illnesses
The standards published as 29 CFR Part 1926 have been adopted. They apply to every employee engaged in construction work.
Four Groups of OSHA Standards
General Industry*
Construction
Maritime
Agriculture
Applicable to the largest number of employees

7. DO THE OHSA STANDARDS APPLY TO ARCHITECTS AND ENGINEERS?
Architect’s and Engineer’s own employees? Yes
Draft Health and Safety Plan
Familiarize self with and comply with site-specific Health and Safety Plan of Party in Control of the Construction Site
Provide and use Personal Protective Equipment
Employees of others? Yes, in certain situations
Is Architect or Engineer a “controlling employer”
Factors considered by OSHA
The extent to which the employer is involved in the multitude of different sorts of activities that are necessary for the completion of the typical construction project, and
The degree to which design professional is empowered to direct or control the actions of the trade contractors

8. DO THE OHSA STANDARDS APPLY TO ARCHITECTS AND ENGINEERS?
An architect who merely provides drawings and specifications is not a controlling employer
Construction Manager that did not have authority to control safety hazards, but could only report them to the owner is not a controlling employer
What if your contract says that as part of your contract administration services Architect/Engineer must “endeavor to guard the Owner against defects and deficiencies in the Work.”
What if your contract says:
“Architect/Engineer will comply with all laws, rules, and regulations”, rather than “review laws, codes, and regulations applicable to the Architect’s/Engineer’s services.” AIA Standard Form of Agreement B101

9. MIOSHA Inspections The reason for an inspection: Imminent Danger
Fatality/Catastrophe Investigations
Employee Complaints
Accident Investigations
Routine Safety Inspections
Follow-up Inspections
Referrals from other agencies
Visual Activity (Construction)
Dodge Reports (Construction)
Division Instruction – Construction Inspection Targeting handout

10. Steps to Construction Site Inspection
Opening Conference
Interviews
Records Review
Walkaround
Closing Conference
Citation Notice
Appeal Process
Informal Settlement Agreements
MIOSHA Penalty Reduction System

11. Opening Conference Voluntary vs. Compulsory Process
Time of Inspection – reasonable time
Presentation of Credentials – typically to representative of GC
Purpose of Inspection (provide copy of complaint if applicable)
What is the employer’s worksite in the construction industry
Generally the site where the construction is being performed
Joint and Separate Employer and Employee conferences
Explain Scope of Inspection – comprehensive or partial, interviews, physical inspection of workplace and records, closing conference
Multi-employer sites

12. Interviews
Authorized to question employees privately during regular work hours
Purpose is to obtain information necessary or useful to inspection
Conducted in a reasonable manner and normally during the walk around, but can be conducted at another location
Employee representative (i.e. ask for supervisor, lawyer?)
Interviewee Statements reduced to writing
Written in first person
Changes initialed
Encouraged to sign and date the statement
Refusal to sign noted
“I have read the above, and it is true to the bet of my knowledge”
May be used in court

13. Records Review
The compliance officer may review all required MIOSHA record keeping document and required written programs and procedures such as safety programs.
Compliance officer may request plans, specifications, daily logs, etc . . .

14. Walkaround
Main purpose is to identify potential safety and or health hazards
Collect samples
Photographs and videotapes
Record all facts pertinent to an apparent violation
Apparent violations should be brought to the attention of employer and employee representatives at time they are documented
identify affected employee
identify hazard
identify employee’s proximity to hazard
record employer’s knowledge of condition
record manner in which important measures obtained

15. Closing Conference
At the conclusion of the inspection, the officer shall conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. The closing conference may be conducted on site or by telephone
If separate conferences, employee conference first
Second Closing Conference if all information not obtained
Notify employer and employee of apparent violations
Follow up inspections – to ensure violations corrected

16. VIOLATION TYPE PENALTY WILLFUL
A violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law.
MIOSHA may propose penalties of up to $70,000 for each willful violation, with a minimum penalty of $5,000 for each willful violation.
SERIOUS
A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.
There is a mandatory penalty for serious violations which may be up to $7,000.
OTHER-THAN-SERIOUS
A violation that has a direct relationship to safety and health, but probably would not cause death or serious physical harm.
MIOSHA may propose a penalty of up to $7,000 for each other-than-serious violation.
REPEATED
A violation that is the same or similar to a previous violation.
MIOSHA may propose penalties of up to $70,000 for each repeated violation.
FAILURE TO ABATE
MIOSHA may propose a penalty of up to $7,000 per day in violation past due date

17. REGULATORY VIOLATION TYPE PENALTY
CITATION POSTING
A violation that the employer failed to post a copy of the citation(s) upon receipt at or near the place where the violation occurred or a place common to employees.
MIOSHA may propose penalties of up to $7,000 for each violation, with a recommended base penalty of $3,000
REPORTING FATLITY/CATASTROPHE
A violation that the employer failed to timely report each worker death, work-related hospitalization, amputation, or loss of any eye.
MIOSHA may propose penalties of up to $7,000 for each violation, with a recommended base penalty of $5,000
EMPLOYEE RECORDS/ACCESS
A violation that the employer failed to maintain injury & Illness records, inform workers how to report an injury or illness, make records available to workers, or allow MIOSHA access to records.
MIOSHA may propose penalties of up to $7,000 for each violation, with a recommended base penalty of $1,000
FAILURE TO NOTIFY EMPLOYEE REPRESENTATIVE
A violation that the employer failed to notify the employee representative of a citation, etc . . .

18. Appeal Process
MIOSHA provides a two-step process for employers to appeal citations or request an Informal Settlement Agreement if not appealing:
First Appeal: All or part of a citation may be appealed within 15 working days of receipt of the citation to the MIOSHA Division that issued the citation.
Second Appeal: A second appeal may be filed within 15 working days upon receipt by the employer of the results of the fist appeals process.
Board of Health, Safety Compliance and Appeals sends notice of prehearing, indicating date, time and location of an informal hearing
If issue not resolved, a formal hearing held before Administrative Law Judge
Decisions of ALJ may be appealed to full seven member board
Once administrative appeal procedures exhausted, may appeal to circuit court.

19. Informal Settlement Agreements (ISA’s)
Within 5 working days of receipt of citation, but no later than 13th workday beyond receipt of citation, employer may:
make a written or telephone or facsimile request to the division issuing citation
Potentially adjust penalties up to 50% of the proposed penalty
Requirements of employer:
Not appeal further
Correct all violations as specified in ISA
Pay proposed penalties as specified in ISA
Provide assurance of abatement as requested
Immediately post ISA
Continue to comply with MIOSHA requirements
MIOSHA Penalty Reduction System Initiative

20. MIOSHA’S PERSPECTIVE What Is An Accident?
An unplanned, unwanted, but controllable event which disrupts the work process and causes property damage or injury to people.
Most everyone would agree that an accident is unplanned and unwanted. The idea that an accident is controllable might be a new concept. An accident stops the normal course of events and causes property damage, or personal injury, minor or serious and occasionally results in a fatality.

21. Accidents Don’t Just Happen
An accident is not “just one of those things”.
Accidents are predictable and preventable events.
They don’t have to happen.
Most workplace injuries and illness are not due to “accidents”. The term accident is defined as an unexpected or unintentional event, that it was “just bad luck”. More often than not it is a predictable or foreseeable “eventuality”.
By “accidents” we mean events where employees are killed, maimed, injured, or become ill from exposure to toxic chemicals or microorganisms (TB, Hepatitis, HIV, Hantavirus etc).
A systematic plan and follow through of investigating incidents or mishaps and altering behaviors can help stop a future accident.
Let’s take our mythical 50 lb carton falling 12’, for the 2nd time, only this time it hits a worker, causing injury. Predictable? Yes. Preventable? Yes.

22. Root Cause Analysis
Direct Cause – Unplanned release of energy or hazardous materials
Indirect Cause – Unsafe acts and/or unsafe conditions
Root Cause – policies and decisions, plans and specifications, personal factors, environmental factors
Root cause analysis is a systematic technique that focuses on finding the real cause of a problem and dealing with that, rather than just dealing with its symptoms.
A root cause is the cause that, if corrected, would prevent recurrence of this and similar occurrences.
A root cause of a consequence is any basic underlying cause that was not in turn caused by more important underlying causes.
Root cause analysis (RCA) is a systematic technique that focuses on finding the real cause of a problem and dealing with that, rather than just dealing with its symptoms.
A direct cause is the cause that directly resulted in the occurrence. Example: in the case of a leak, the direct cause could have been the problem in the component or equipment that leaked. In the case of a system misalignment, the direct cause could have been operator error in adjustment of the alignment.
An indirect cause is the cause that contributed to the occurrence but, by it self, would not have caused the occurrence. Examples: in the case of the leak, the indirect cause could be lack of adequate operator training in detecting the leak and identifying its source. In the case of the system misalignment, an indirect cause could be that the operator was distracted or that the tools to align the equipment had not been calibrated properly.
A root cause is the cause that, if corrected, would prevent recurrence of this and similar occurrences. Example: in the case of the leak the root cause could be management not ensuring that the equipment is properly maintained. In the case of the system misalignment, the root cause could be an ineffective training program.
A root cause of a consequence is any basic underlying cause that was not in turn caused by more important underlying causes.

23. The Five Whys
Basic Question - Keeping asking “What caused or allowed this condition/practice to occur?” until you get to root causes.
The goal of applying the 5 Whys method is to determine a root cause of a defect or problem.
The following example demonstrates the basic process:
My car will not start. (the problem)
1) Why? - The battery is dead. (first why)
2) Why? - The alternator is not functioning. (second why)
3) Why? - The alternator belt has broken. (third why)
4) Why? - The alternator belt was well beyond its useful service life and has never been replaced. (fourth why)
5) Why? - I have not been maintaining my car according to the recommended service schedule. (fifth why and the root cause)
The five whys is one of the simplest of the root cause analysis methodolgies. It is a question asking method used to explore the cause/effect relationships underlying a particular problem. Ultimately, the goal of applying the 5 Whys method is to determine a root cause of a defect or problem. The following example demonstrates the basic process:
My car will not start. (the problem)
1) Why? - The battery is dead. (first why)
2) Why? - The alternator is not functioning. (second why)
3) Why? - The alternator belt has broken. (third why)
4) Why? - The alternator belt was well beyond its useful service life and has never been replaced. (fourth why)
5) Why? - I have not been maintaining my car according to the recommended service schedule. (fifth why, root cause)
Note that the questioning for this example could be taken further to a sixth, seventh, or even greater level. This would be legitimate, as the five in five whys is not gospel; rather, it is postulated that five iterations of asking why is generally sufficient to get to a root cause. The real key is to encourage the troubleshooter to avoid assumptions and logic traps and instead to trace the chain of causality in direct increments from the effect through any layers of abstraction to a root cause that still has some connection to the original problem.
5 Whys offers some real benefits at any maturity level:
Simplicity.  It is easy to use and requires no advanced mathematics or tools.
Effectiveness.  It truly helps to quickly separate symptoms from causes and identify the root case of a problem.
Comprehensiveness. It aids in determining the relationships between various problem causes.
Flexibility.  It works well alone and when combined with other quality improvement and trouble shooting techniques.  
Engaging.  By its very nature, it fosters and produces teamwork and teaming within and without the organization.
Inexpensive.  It is a guided, team focused exercise.  There are no additional costs.
Often the answer to the one “why” uncovers another reason and generates another “why.”  It often takes five “whys” to arrive at the root-cause of the problem.  You will probably find that you ask more or less than 5 “whys” in practice.

24. Begin Fact Finding Immediately
It’s crucial to “find out the facts” as soon as possible and before MIOSHA interview because evidence will disappear and people will forget, including you
This statement is true for both near-misses, mishaps (incidents) as well as accidents in which injuries or illnesses have resulted.

25. Fact Finding Witnesses and physical evidence Employees/other witnesses
Position of tools and equipment
Daily logs, charts, records
Plans and Specifications
Bullets will appear upon mouse click.
This slide and the next will show what you should take notes on at the accident or incident scene. Have discussion with the audience on each point as it appears.

26. Fact Finding
Take notes on environmental conditions (weather, lighting, time)
Note general working environment
Take samples, if applicable
Note working conditions
Take photographs
Diagram the scene
Bullets will appear upon mouse click.
Some scenes are more delicate then others. If items of physical evidence are time sensitive address those first. If items of evidence are numerous then you may need additional assistance.
Some scenes will return to normal very quickly. Are you prepared to be able to recreate the scene from your documentation?
Consider creating a photo log. The log should describe the date, time, give a description of what is captured in the photo and directionality. Example: Photo # 4, February 1, 2004, 10:36 AM, Northeast corner of Warehouse Number 2, Row 11, Bin 14, showing carton that fell from top shelf. Note: crushed bottom corner of carton and wet area under carton on floor.
Link to sketch of bakery accident scene: Tell the audience how much information can be captured through a simple line drawing using stick figures. They don’t need to be an artist.

27. Need further help?
Consultation Education and Training Division offers…
Provides free in-house MIOSHA safety and health education, training and consultation services
Maintains library of safety publications
Lends videos
Distributes publications at no cost
A comprehensive consultation visit will lower but not remove your business’s name from the current cycle of scheduled compliance inspections but will not exempt you from:
imminent danger
fatality
accident
complaint/referral inspections by compliance
Comprehensive consultation means a review of injury data, all written safety programs, physical walk through of the entire workplace, written report to the employer and confirmation of correction of all serious hazards identified.
(517)