Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Bill Principe. If you have questions of your own or require further information regarding OSHA 101 ,
feel free to contact Constangy, Brooks, Smith & Prophete, LLP (see contact information to the left).
For a presumed work-related heart attack, how does OSHA apply the "discernible cause" and "burden of proof" language of the NAM settlement?
OSHA has adopted an exceptionally broad definition of what is work-related. Even though the NAM settlement agreement talks about discernible cause, through OSHA’s
interpretation letters discernible cause has been interpreted to mean that if there is an identifiable event, an identifiable injury/illness that occurs at work, if you can point to an event that occurs at work, then there is a presumption that it is work-related. One of the early interpretation letters even talked about a person simply walking across a perfectly level hallway, and their knee pops. OSHA says that’s work-related because you can point to the identifiable event when the guy’s knee pops, and because it happened at work, that’s all that’s required to establish it’s work-related—unless one of the nine exceptions to the rule applies. One of the nine exceptions would be if the symptoms of an underlying, non-work-related, personal condition merely surfaces at work. OSHA would say, “Well, I can point to the identifiable event at work” (you had a heart attack), but the employer could probably, in many cases, say there was nothing that happened at work that contributed in any way to this guy having a heart attack. He had an underlying coronary condition, and he was simply sitting at his desk in an air-conditioned office when he had a heart attack. Unfortunately, sometimes there is something at work that caused or contributed to the heart attack occurring. Let’s say that it’s August in Houston, and you have an employee outside in the heat moving boxes, and maybe they’re wearing a lot of PPE. Heat is
going to be considered as a contributing factor to the heart attack, and in that situation, OSHA would call the heart attack work-related. That’s a pretty long-winded answer. But I hope it answered the person’s question.
Cardiac semantics: Does OSHA differentiate between "Heart Attack" and "Sudden Cardiac Arrest"?
Well, I’ve never seen OSHA distinguish between those two. Again, it would come down to whether there’s an underlying condition, the symptoms of which merely surface at work, or whether
there’s something at work that triggers or prompts the condition to arise. I’m sure there’s a medical distinction between the two terms, but for OSHA record-keeping analysis it would just
come down to whether there was anything at work that contributed to the onset of the attack/arrest or whether the attack/arrest was simply the result of an underlying condition, without any contribution from work.
Please clarify how OSHA determines whether a violation is willful? What documents will they look at and are entitled to see?
They’ll start by looking at the accident investigation. Typically, if there’s a very serious injury or fatality, most companies are doing this investigation under the direction of an attorney so they can protect that investigation and won’t have to turn it over to OSHA. OSHA will also look at whatever internal inspections have been going on. So, let’s say we have a case involving fork trucks. In this case, one of the documents that they would look at would be the pre-shift inspections, where you’re checking out the conditions of the fork truck. They’re looking to see whether there was some unsafe condition that was noted on this inspection form. If the employer didn’t take the fork truck out of service, the employer was allowing people to continue to operate in an unsafe way. OSHA looks at whatever inspections you do. Returning to the fork truck example, let’s say that your fork truck operators are high-low fork truck operators, which means that their fork truck elevates. If these operators work in a warehouse and are placing product in an elevated rack, you may have observed these employees not wearing fall protection, and yet you don’t do anything about it. That sort of paperwork will be used against you. Paperwork from outside audits, such as insurance company audits, may also be used against you because these audits are often not done under attorney-client privilege. And while OSHA has a policy that says they will not automatically ask for these audits, they do. Their policy has enough wiggle room in it that if you have one of these sorts of cases, OSHA’s going to be able to get a copy of those outside audits. So, this is the sort of paperwork that OSHA will look at to determine willful violations. However, willful violations are primarily going to be determined not through documents, but through employee and supervisor interviews. And so it usually ends up being the words out of your own supervisors’ and managers’ mouths that lead to citations for willful violations.
If an employee falsely accuses an employer of an OSHA violation, does the retaliation limitation still protect the employee?
No, because the accusation has to be made in good faith. In other words, if the complaint is clearly fraudulent, then it would not constitute protected activity. Sometimes there’s going to be a very thin line between good and bad faith, and it’s not going to be so clear whether the employee legitimately believes their accusation. If you can establish that the claim was completely bogus, however, then you’re going to have a pretty good argument. I have a case right now where a person made an allegation of workplace violence. This person’s supervisor made what seemed like a pretty innocent remark, but if taken out of context, it would constitute a threat of physical violence. This particular employee interpreted the remark as an indication that this supervisor was potentially dangerous. I don’t think the case is going to go anywhere, but that’s because we have a lot of statements from co-workers who all say, “Well, I was there when it was said, and it was clear that the supervisor was joking. Nobody could have reasonably been threatened by those remarks.” Nevertheless, it’s a complaint of threatened violence that OSHA is investigating. Again, I think OSHA will make the right decision, but meanwhile the company has to go through the investigation.
Would a subcontractor working on an employer’s site fall under a “host company,” just as temporary employees do?
Well, it’s related to the host-staffing agency relationship. On a construction site or any site for that matter, if you’re simply a subcontractor, OSHA has something called a multiple employer citation policy. This policy allows OSHA to look at the relationships between the various employers who are all working together on a worksite, and they look at a couple of different categories. If you are a subcontractor, they are going to look at whether you created the unsafe condition, or whether your employees were exposed to the unsafe condition. So, even if you didn’t create the unsafe condition, if your employees are exposed to the unsafe condition, then OSHA has a basis for citing you, the subcontractor. When you’re the host, OSHA is typically looking at whether you’re the controlling employer. Sometimes, subcontractors create an unsafe condition, but host employees are not exposed to it. In these cases, OSHA takes the position that you, the host, are a controlling employer, and you’re supposed to be responsible for safety onsite. The host, therefore, gets the same sort of mirror-image or parallel citations as the sub-contractor. OSHA is just fitting you into slots: controlling, creating, or exposing. That is the analysis that OSHA’s going to apply.
Is there an OSHA obligation for an employer to apprise employees when HALON is onsite?
Well, HALON would be covered under the Hazard Communication Standard. So yes, you’re going to have what used to be called the material safety data sheet, and is now called the safety data sheet. If you’re using HALON, the containers that have the HALON are going to have to be properly labelled with all the signage that’s now required under the amended HazComm standards. Through hazard communication training, the HALON is going to be listed both on your list of chemicals and on a safety data sheet. It would be covered in one way or another through the training that’s required under HazComm.
Is there an OSHA reporting module in NOVAtime?
NOVAtime does not have a specific OSHA reporting module, but the system is designed to track your employees’ work time. It can also track if they have been injured on the job, based upon the messages you would like sent out to the employees. This will help manage any potential OSHA-related issues you may run into with your organization.
When first reporting a fatality or hospitalization, can you advise OSHA that the case will be handled by your attorney?
You can, but it’s not going to change what OSHA’s doing. When you call in the fatality or hospitalization, OSHA will ask you a series of questions from a script that’s been published in a directive. One thing you should do is give your attorney this whole script of questions because that’s what OSHA’s going to ask you either when they get to your site or in a follow-up call. By advising them that you have an attorney, they’ll just say, “That’s fine, thanks.” If this is one of the 37% of cases where they come out to the site (if it’s a fatality, it’s 100%), whether you have an attorney or not is not going to forestall them from coming out to your site or doing anything that they would ordinarily do. So, there’s no particular damage in telling them that you have an attorney.
Does an employer need to report sudden cardiac arrest in the workplace under the new reporting requirements?
So again, the point I was making during the presentation was that even if you don’t think it’s work-related (which seems to be the intent of the question), you’re much better off reporting the cardiac arrest. My advice would be to always report that kind of case and just make it clear when you first describe it to the compliance officer that you’re giving them a courtesy call. Say, “I don’t believe this is work-related, but we had this incident occur. I’m just letting you know.” They have so many other cases that they legitimately need to follow up on that they’re not going to come out for that sort of case. If you don’t report it, you run the risk of getting a citation. We have a client that got a citation because a guy had a heart attack while napping during his lunch break. The employer, of course, did not consider the heart attack work-related, and they did not call it in to OSHA. They got a $5,000 citation. That citation eventually went away, but there was a citation they had to deal with nevertheless. So, you’re always better off just calling it in and clarifying that it’s not work-related.