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“I Hear You Knocking . . . But You Can’t Come In!”

Check out this months article from Employment Law Monthly, written by Melanie D. Lipomanis, an Associate on the Employment Team at Porzio, Bromberg & Newman, P.C.

I Hear You Knocking . . . But You Can’t Come In!

The time to plan and implement procedures for handling a worksite inspection is definitely not when the Occupational Safety and Health inspector, known as a compliance safety and health officer (“CSHO”), is knocking on the door. Frequently, employers permit CSHOs to expand their inspection to areas in the workplace that are not specifically related to the injury or illness under investigation. Since the inspectors can cite any violations they see in “plain view” regardless of the purpose of the inspection, permitting them unfettered access to the entire worksite can lead to additional citations and penalties.

In United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that OSHA could not expand the scope of a narrow injury-based inspection to a facility-wide general inspection based on the employer’s OSHA 300 injury and illness logs.

In her article she lays out the Facts, Impact of Mar-Jac, and Employer Takeaway from this case.

Facts: Mar-Jac operates a poultry plant in Georgia. In 2016, an employee was hospitalized after being burned by an electrical arc flash. The employer reported the incident as required under OSHA regulations. OSHA’s initial inspection uncovered the potential for other electrical hazards in the poultry plant. OSHA sought to expand the scope of the inspection to cover the entire facility and search for additional hazards in the plant that had no relation to the electrical accident whatsoever, including ergonomics, biological hazards, and slips/falls.

The employer consented to an inspection of the specific worksite and tools involved in the electrical accident, but refused to allow inspection of any additional areas or hazards. OSHA applied for and was granted a warrant to inspect the entire facility. Mar-Jac filed an emergency motion to quash the warrant.

Procedurally, in a warrant application, OSHA must establish probable cause by providing reasonable suspicion that a violation exists. OSHA argued that Mar-Jac’s OSHA 300 injuries and illnesses logs created reasonable suspicion of hazards which suggested the existence of violations. The Eleventh Circuit rejected this argument, holding that a recorded injury or illness does not by itself demonstrate that it resulted from an OSHA violation. The Court distinguished hazards from violations, and explained that the existence of a hazard does not necessarily establish the existence of a violation. OSHA must show a violation to demonstrate reasonable suspicion in a warrant application.

Impact of Mar-Jac: Mar-Jac reinforces that there are limits on OSHA’s inspection authority. OSHA cannot expand its inspection of a facility based solely on the existence of an injury or hazard. Rather, OSHA must proffer additional evidence to support its reasonable suspicion of a violation. Although Mar-Jac is an Eleventh Circuit decision and not binding precedent in other jurisdictions, it does offer a valuable lesson for employers to reasonably limit their consent for inspection to the specific area or tools involved in the reported injury or illness.

Employer Takeaway: Employers are entitled to Fourth Amendment protection against unreasonable searches and seizures of their workplaces, including inspections by OSHA. Accordingly, a CSHO must obtain either the employer’s consent or an inspection warrant prior to any inspection of the employer’s premises. Frequently, the CSHO will arrive at the worksite unannounced, and unarmed with a warrant. Employers do not want employees to make an all too common mistake of throwing the company doors wide-open when they absolutely have no obligation to do so. The initial contact is the first opportunity the employer has to negotiate with the CSHO to limit the scope of the inspection and control how the inspection process will be carried out. This is where the employer’s advanced planning really will pay off.

Section 8(a) of the OSH Act provides: “OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.” During the initial consultation, the employer should try to come to terms with the CSHO regarding the reasonableness of the scope and limitations of the inspection, i.e., define the equipment, and/or area of the worksite that is to be inspected by the CSHO. Once that is established, the employer should confine the CSHO’s access and travel routes to only the areas within the scope of the inspection. The CSHO’s physical access to the premises should be with a management escort only, including the company compliance officer during any walk around and sample collection activities.

The CSHO has the right to interview employees as part of any inspection, however, the employer is entitled, and should insist, to be present for the interviews of any management employees.

Click here for the complete article.

 

 

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OSHA Cites Contractor after Employees Suffer Burns from an Arc Flash

U.S. Department of Labor Cites Tennessee Contractor
After Two Employees Burned at Nuclear Power Plant

SODDY DAISY, TN – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Day & Zimmerman NPS Inc. for exposing employees to electric shock hazards at the Tennessee Valley Authority Sequoyah Nuclear Power Plant in Soddy Daisy, Tennessee. The company faces $71,599 in proposed penalties.

Two employees pulling electrical cable suffered burns from an arc flash. OSHA cited the Chattanooga-based company for failing to require that employees wear protective clothing and equipment; conduct pre-job briefings with employees on energy source controls; removal of a ground and test device; and allow potential for residual electrical energy to accumulate.

“These serious injuries could have been prevented if the company had implemented effective work practices to reduce the risk of electric shock hazards,” said OSHA Nashville Area Office Director William Cochran.

Click here for more information and to read the news release directly from the U.S. Department of Labor

OSHA reviews cause of two arc flash accidents, finding they could have been prevented if the workers performed a simple test

In both cases the workers did not test to verify the equipment was actually deenergized before beginning the work- they believed it was, and that could have cost them their life. If they had taken the extra time to perform a simple test, these accidents could have been prevented.

Summary from ISHN of OSHA analysis of two arc flash accidents:
–In the first case study, an electrician was working on a circuit breaker panel that he thought was deenergized. After completing the work, the electrician was closing one of the enclosure doors when an arc flash occurred. Electric current from the energized panel moved through the air to the closed panel door. The rapid release of energy caused the panel door to fly open, hitting the worker and knocking him unconscious as the panel continued to arc.

Although the electrician believed that all power had been deenergized from the electrical panel, OSHA said this incident could have been prevented by voltage testing the electrical panel before starting work. Taking the time to perform a simple test can ensure workers’ safety.

Often arc flashes occur when reenergizing panels after maintenance. Proper cleaning is one method of reducing this hazard.

–In the second case study, an electrician and a coworker were retrofitting dated equipment, installing new buckets on a switch gear. The electrician mechanically disconnected the switch, but he did not test it to verify deenergization. As he attempted to remove the switch from the switch gear, an arc flash occurred. The electrician was severely burned and suffered acute respiratory stress.

OSHA said disconnecting the switch was not sufficient to prevent the flow of electricity through the equipment. The equipment should have been voltage tested to verify that it was deenergized before beginning work, as all sources of power to the equipment were not secured.

We cannot say it enough, it’s so important to always test to verify equipment is deenergized before starting any work. You must assume it’s live and wear the proper PPE to perform the test. Take those few extra minutes. It can safe your life.

Renewable Energy Company cited after fatality at New Hampshire Power Plant

 

U.S. Department of Labor Cites New Jersey Renewable Energy Company
Following Fatality at New Hampshire Power Plant

The U.S. Department of Labor’s Occupational Safety and Health Administration cited EWP Renewable Corp. doing business as Springfield Power L.L.C., for 25 safety violations after an employee suffered fatal injuries when he was pulled into a conveyor at the company’s Springfield plant in New Hampshire in November last year.

The Mount Laurel, New Jersey-based parent company faces $125,460 in proposed penalties. OSHA inspectors found that the conveyor and other machinery lacked required safety guarding, and employees were not trained in lockout/tagout procedures to prevent equipment from unintentionally starting.

Springfield Power was also cited by OSHA for fall hazards, electric shock and arc flash hazards, lack of adequate emergency evacuation and fire prevention, and hazardous energy control programs, according to a press release issued Friday, June 1st, 2018.

“This employer’s failure to protect employees resulted in a tragedy that could have been prevented if training was provided and machinery was appropriately guarded,” Rosemarie O. Cole, OSHA New Hampshire Area Director, said in the press statement.

The company has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings.

Click here for more information from this OSHA News Release