1. ASSE San Francisco Chapter Professional Development Conference Current Trends at OSHA: What’s Hot in 2010 Fred Walter Walter & Prince LLP February 23, 2010 www.walterprincelaw.com

2. Table of Contents DOSH Enforcement ◦Heat Illness (cont’d) ◦Heat from the Feds ◦Heat on Controlling Employers (cont’d) ◦Heat on Employers re: penalties © Walter & Prince LLP 2009

3. Table of Contents OSHAB (The Appeals Board) ◦Heat from Labor, Legislature ◦Heat on Employers re: Abatement ◦Heat on Employers re: 342(a) © Walter & Prince LLP 2009

4. Table of Contents Worker’s Compensation Appeals Board ◦Serious & Willful Misconduct ◦Heat on Crane Owners © Walter & Prince LLP 2009

5. Table of Contents Superior Court and Beyond ◦MEW Controlling Employers ◦MEW: All Employer’s Duty to Report Hazards © Walter & Prince LLP 2009

6. DOSH Most cited sections: ◦3203: Illness and Injury Prevention Program ◦3395: Heat Illness Prevention ◦1509: Construction Application of IIPP ◦5194: Hazard Communication ◦6151: Portable Fire Extinguishers © Walter & Prince LLP 2009

7. DOSH Last Year: Shifting the Paradigm ◦DOSH as a service-oriented agency ◦Employers as Clients This Year: DOSH as Fed/OSHA’s arm ◦Fed/OSHA Audit ◦“As Effective As…”  Citation for each Affected Employee  New definition of “serious” physical harm © Walter & Prince LLP 2009

8. DOSH Heat Illness ◦DOSH is enforcing 3395 as a strict liability rule: Any incidence of HI means that the reg was violated. ◦DOSH is enforcing 3395 as they would like it to read, not as the SB wrote it. ◦DOSH: All heat illness is serious illness © Walter & Prince LLP 2009

9. DOSH More Heat than Light on 3203 ◦The General Duty Clause: “If you had an accident, there must have been a failure to train, or to ID a hazard, or both.” ◦The Junior Woodchuck Handbook: All job- related special programs (e.g., fall protection, traffic control) must be in your IIPP. © Walter & Prince LLP 2009

10. DOSH Some Confusion on 342(a) ◦Who is an Employer for the purpose of reporting? ◦Can the Employer designate someone not an employee to report? © Walter & Prince LLP 2009

11. DOSH Integration Issues ◦Can IH’s become Safety Engineers? ◦Ex: OPU in heavy equipment death case ◦Ex: Three visits to a bakery on a machine guarding case; one additional citation for a dead cockroach © Walter & Prince LLP 2009

12. DOSH Controlling Employer Issues ◦Harris Construction hearing in March ◦An active safety program is good, right? ◦How many controlling employers can dance on a construction site? © Walter & Prince LLP 2009

13. DOSH Aggressive Penalty Settlement Positions ◦Are penalties controlled by regulation? ◦Forget your defense, it was a serious injury. ◦Add: Stipulated penalties © Walter & Prince LLP 2009

14. DOSH Aggressive Penalty Collection Efforts ◦DIR Accounting Office not waiting for decisions, orders to become final ◦Labor Code allows DOSH to report orders immediately after issuance ◦Labor Code allows DIR to apply for judgment upon notice of unpaid penalty © Walter & Prince LLP 2009

15. DOSH New Definition of “Serious” Physical Harm ◦Now: “…Substantial probability of death or serious physical injury or illness.”  Serious Injury ◦ Loss of a member of the body ◦ Serious permanent disfigurement ◦ Hospitalization for more than 24 hours for other than observation © Walter & Prince LLP 2009

16. DOSH New Definition of “Serious” Physical Harm ◦Next:  “Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job.”  “Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor or other licensed [HCP].” © Walter & Prince LLP 2009

17. Appeals Board (From our 2009 Presentation) Criticism from Labor ◦Board needs to be more punitive ◦More appeals need to be forced to hearing ◦Too many settlements ◦Negotiated penalties do not spur changes in behavior © Walter & Prince LLP 2009

18. Appeals Board Heat from Labor, Legislature ◦“Pay less attention to the law. Do justice.” ◦-- January Advisory Committee meeting Abatement Pilot Project ◦Serious/higher citations with abatement issues ◦Target: Six months to decision © Walter & Prince LLP 2009

19. Appeals Board Advisory Committee meeting ◦Thursday, February 25, 2010 – Sacto ◦Proposed revisions of procedural rules  Allow testimony by conference call or affidavit  Presume expertise of DOSH inspectors  Shift burden of proof to employers  Adopt Abatement “Rocket Docket” © Walter & Prince LLP 2009

20. Appeals Board Beyond the Procedural Fight: ◦342a reductions: not so fast ◦Are appealed criminal convictions admissible? © Walter & Prince LLP 2009

21. Serious & Willful Misconduct Continued increase in filings Bigge Crane decision: ◦Crane operators as management © Walter & Prince LLP 2009

22. Superior Court and Beyond The Harris Case (March, 2010) ◦Who has to prove controlling ER status? ◦Is an affirmative defense available? © Walter & Prince LLP 2009

23. Superior Court and Beyond California Court of Appeals ◦Suarez v. Pacific Northstar Mechanical, Inc. ◦All ER’s on MEW have duty to report hazards © Walter & Prince LLP 2009

24. Resources Walter & Prince LLP ◦www.walterprincelaw.comwww.walterprincelaw.com  E-zines, articles and further links Fed/OSHA Establishment Search ◦www.osha.gov/oshstats/index.htmlwww.osha.gov/oshstats/index.html Cal/OSHA Regulations ◦www.dir.ca.gov/samples/search/query.htmwww.dir.ca.gov/samples/search/query.htm Cal/OSHA Enforcement (DOSH) ◦www.dir.ca.gov/DOSH/dosh1.htmlwww.dir.ca.gov/DOSH/dosh1.html Cal/OSHA Appeals Board ◦www.dir.ca.gov/OSHAB/oshab.htmlwww.dir.ca.gov/OSHAB/oshab.html © Walter & Prince LLP 2009