OSHA Whistleblower Complaints, Inspections, and Violations Legal Update

Do they see us? So you got the PowerPoint, right?

I do. I have the PowerPoint. I'll send it out to you.

So they'll be seeing the PowerPoint.

Yes. Yeah. Yeah. So we'll process that.

I don't want to scare them this early in the day.

You're funny.

In the week.

I know, well, folks are coming in now, so thank you for joining us on the webinar. We've got— we're getting— gonna get started in a couple of minutes. Give us a few to let everybody enter the webinar. Thank you for joining us today. Ed and I are honored to have you here, and I'm in monsoon Florida, so it's all good.

Yeah, I know.

It's been raining here. This is day 4, I think. Miami was— I saw some pictures from Miami. It was pretty flooded in Miami. So it's pretty interesting.

Yeah, that's amazing.

Yeah, yeah.

I'm glad I'm not there this week. So we worked out. Yeah, I was supposed to be there all this week.

Yeah, yeah.

Wow.

Yes, no, this was not a good week. So this is a good thing that you're not here. Hi, Jennifer. Thank you for joining us. Hello everyone. Okay, let's, let's get started. All right, well, thank you again for coming to our webinar. Ed Folk and I from Fisher Phillips, we're putting this on again. This is our second OSHA webinar in our series, and I am pretty happy to have you here. So let me start first by— let me start first by doing some introduction, and then after we do the introduction, then I can go ahead and put Ed's presentation up and then we can get started. Started with his presentation.

Um, yeah.

Okay, so we are in OSHA Compliance Whistleblower Complaints and Inspections Legal Update, and I'm going to tell everybody on the call today, we are in the middle of a rainstorm. It just started. Um, it's thundering, so I am crossing my fingers and praying that Nothing happened, so we're going to be thinking good thoughts. So OSHA compliance, whistleblower complaints, inspections, a legal update, and we are also going to talk about, um, the new OSHA mandate around recordings. So thank you again for joining us. Um, the webinar is in partnership with workcompseminars.com, which is my company, and Fisher Phillips, which is Ed's company. As law firm, and we are honored to have you here. I know that people are still joining and coming into the webinar, so let me take care of some housekeeping before we get started. We are going to take questions, but we're going to take it sort of methodically. Several of you that registered, um, asked about specific things about the OSHA process. I have sort of compiled the questions and I have them to ask and other people will post. So as we go along, please put your questions in either the Q&A box or the chat box and I will pull them and when Ed gets a break, we will, you know, ask him the questions and he will answer them and we'll sort of try to go through it. And if there's stuff left over, if you want to email me, Ed's contact information will be at the end of the program. Program as well. I want to tell you about two workshops I have coming up. One is creating a COVID-19 return to work response plan. For those of you who don't know me, I will introduce myself in a little bit. My name is Margaret Spence. I've been working with a lot of the meat producers, I guess is a good way of putting it, our and they've sort of come up with some plans, the ones that I work with, and I think they're pretty methodical, and I want to sort of lay those out on a rapid response plan, which I think is where a lot of people are struggling with. What do I do in the immediate if something happens right then? And I've sort of created like an 8-point, 8-step process for a rapid response plan. And I'm also going to be doing another workshop called Investigating COVID-19 Workers' Comp Claims. One of the things that we're finding in the work that I'm doing is that adjusters are not necessarily asking the right questions when someone reports a COVID-19 claim, but employers aren't asking the right questions either, whether it's a suspect COVID or it's a— you've sent the employee home for quarantine. There are some specific questions that I— that it would be helpful for you to have a bank of questions that you really go through and gather the investigation process. So we're going to do this from a workers' comp standpoint, not from an OSHA standpoint, but specifically from a workers' comp standpoint. So let me introduce myself to you really quickly. My name is Margaret Spence. I am the CEO of C. Douglas Associates. I started my company 21 years ago. We have a couple different brands, but workcompseminars.com is our main brand. Our website is going to go live this afternoon. I'm so excited. As soon as we get off this webinar, I'm, I'm crossing my fingers everything goes well and we'll take the site back live.

We've done a pretty big revamp on it.

Um, I manage workers' comp programs for large employers across the country, and I speak a lot on this topic. I've written a couple books in the workers' comp space. So that is who I am, um, for those of you who don't know who I am. Um, Ed Folk is with me, and I'm probably butchering your last name, Ed. Um, he's a partner with Fisher and Phillips. Uh, he's a legal eagle in the legal eagle within the OSHA compliance space. Ed is a partner in the Atlanta office and Washington, D.C. metro office located in Arlington, Virginia. He's a former co-chair of the firm's Workplace Safety and Catastrophic Management Practice Group. Prior to joining Fisher and Phillips, he was the Assistant Secretary of Labor and Occupational Safety and Health, named to the post by George W. Bush. He held the OSHA administrator position from 2006 to 2008. During his tenure at OSHA, workplace injuries and illness and fatality rates dropped to the lowest level recorded. Ed and I got together. He has a pre-done presentation that we're gonna go through, and I'm gonna switch over to that right now. What we're gonna cover, OSHA investigation, whistleblower complaints, OSHA inspections, the new OSHA reporting guidelines, and everything that is everything about OSHA. So we're gonna, we're gonna go down this whole list of everything about OSHA. So give me one quick second and let me, Escape from this and pull up Ed's presentation. 2 seconds, everyone. Okay, Ed, here we are. And let me Let me get this. One second challenge to get the slideshow going. There we go. Get rid of that pain. There we are. Okay. How to effectively handle an OSHA inspection. Ed, the floor is all yours.

All right, great. And good afternoon, or good morning, I guess, if some of you are on the West Coast. I just want to first start off by just saying thank you for your commitment to safety and health. I mean, I'm assuming part of the reason you're on today is you want to have a good safety program. You want to be— make sure that you're compliant. But want to know what's going to be going on from an OSHA perspective to kind of protect your clients. So, I just want to say thank you. We can go to the next slide. Or am I doing that or are you doing it?

It's on my computer, so I'll go ahead and advance it. Just tell me next and I'll keep going.

That's right. So what I did want to say, and I find a lot of the safety profession doesn't get the credit it deserves for all the stuff that they do. So that's why I wanted to say thank you for your commitment. One of the things I— although one of the positive things, and there has been some positive things, there have been unfortunately a lot of negative things that have come out of the pandemic. But one of the positive, I think, is that, you know, one of the things I've always wanted to see is the movement of the safety profession to the C-suite. That we've never really, as a profession, never been there like we have, like HR does and all the other production does and stuff like that. So what this pandemic has showcased how safety departments can be a real benefit and a protector of the company. During this time. So I think you're gonna— we've seen where the safety profession has now taken the lead on a lot of stuff dealing with the pandemic, and therefore is in this, in this, is in the spotlight with respect to those in the C-suite. And I'm hoping we're going to stay there from now on. So I put this quote in there: winning is not a sometimes thing but an all-time thing, from Vince Lombardi, who's one of my favorite coaches. And when I saw that, I said, this is exactly what we need to know about safety too. Safety has to be an all-time thing. It can't be a sometimes thing, and that's kind of what we're having here. So that being the case, let's go to the next slide, and we'll talk a little bit about what we're going to be going— let me first talk about too, I mean, the topic was very kind of a broad topic, and I'm going to be kind of focusing predominantly on ocean inspections and how they handle them and what's going on here. But also with respect to whistleblowers, you're seeing a lot of, a lot of complaints. You're getting, you're getting two types of complaints at OSHA right now. You're getting the complaints that go to the enforcement side, and, and up to now, those complaints, unless you were in healthcare or nursing homes industries, then you, your, your complaints were basically refer considered to be an informal complaint, and therefore OSHA would ask to do basically a rapid response to that complaint and have you write, you know, just do an investigation and send them information. So, and we're going to see that continue, but there has been a dramatic increase in number of enforcement complaints that have been filed about from COVID-19 aspects. And so, and the same thing with whistleblower, but I think as people As we now start to open up the country, those complaints are going to dramatically increase because you've got a lot of people— complaints that we've been receiving, um, that OSHA has been receiving for the most part have been people, the companies that have been up, been continuously operating. These are the essential companies, essential businesses, or essential industries, whatever you want to call them. And they've been, um, so they've been operating, and there's where the complaints have come from. A lot of them have obviously come from the healthcare area, and so you're seeing that. And also, what needs to be a concern, and I'll be talking— we can just mention this briefly, is you're already seeing a lot of lawsuits being filed for COVID-19. And so what I would tell you is what OSHA is going to be looking for when they come in and do an inspection is the same things that the plaintiff's lawyers are looking for. If you look at the complaints that have been filed against— was it Amazon, I guess? And then we had Walmart had, I think, a lawsuit filed. Smithfield had a lawsuit filed. JBS USA, the meatpacking, they had lawsuits filed. And if you look at all these lawsuits that are being filed, they're basically going state negligence claims. And inevitably, if you look at it, the complaints are, well, I'm here, my employer is not providing masks. I'm here, they're not doing temperature checks. I'm here, they're not doing social distancing. I'm here, we're not doing sanitation and disinfecting of the worksite. We're not being trained on how to use the masks. We're not trained on how to avoid the the virus and everything else like that. These are the complaints that you're seeing that are basis for the lawsuits. Now you have a wrongful death. I'm trying to remember who had the wrongful death action that's been brought, but basically the same thing. The wrongful death was caused by the failure of the company to provide the PPE and not doing social distancing. So you need to be doing that. Um, it very is very important to do, uh, uh, to to make sure that you are up to date on what is required, that you do have a COVID-19 action plan or control plan or whatever you want to call it. You really need to have that, and you need to make sure it's being implemented and it's being followed because there's nothing worse that you can do. If you want to do a negligence lawsuit, have it where you say, we're going to do— we're going to have everybody wear a face mask and we're going to take their temperature and we're going to require social distancing. And you do none of that, well, now you really opened yourself up to a, you know, a lawsuit big time. So, and the same thing with the whistleblowers. And what we're finding is if you are willing to put things in place, put a good action control plan in place, and then communicate that information to the, to the, to your employees, you're in the long run going to be doing a lot better. And this is particularly true about the people that are going to be coming back now when that we're starting to go back to work. Those people have been away this whole time. They felt fairly safe because they've been staying at home. Now you're going to ask them to come into the facility. And I just got off the phone earlier today from a client that— fairly large company that, you know, they're— she's concerned because they're not requiring employees to wear the face mask or anything else like that. All I can tell you is if you're doing that kind of thing, if you're— if If you're not following the CDC regulations then, and the OSHA— excuse me, CDC guidance, OSHA guidance, you're— and the EEOC guidance on all this stuff, you just open yourself up for a lot of bad things. Whistleblower complaints, lawsuits, and then of course, if you haven't done all this stuff, guess what? OSHA is going to be called in, and OSHA last week, you know, about a week ago, They did a change in their recordkeeping requirements, how they're looking at a presumption that it's COVID-19 is work-related from a reporting standpoint. And then they also came out with their guidance that they're going to be doing to their inspectors about what kind of inspections they're going to be doing. And clearly, they're going to be focusing on a lot of COVID-19 complaints. And why is that? Well, they got two things. You got the Congress, the Dems in the Congress, And you got the unions complaining about they're not doing enough. Matter of fact, the AFL-CIO filed a lawsuit last week against OSHA, asking that the judge order OSHA to issue an emergency temporary standard on infectious diseases. And OSHA has been kind of reluctant to do that. I've been actually interviewed in about 3 or 4 major publications, asked that question. I said, well, the OSHA has the tools. It's just they just gotta, you know, you gotta make sure they use them. So you need to be aware of that. So, um, OSHA is going to be going out there. And if you look right there, for the past 2 months, OSHA has had limited inspections just to fatalities, catastrophic accidents, and certain coronavirus issues involving hospitals basically and nursing homes. So they are way behind in the number of inspections that they're supposed to do every year. So they're going to be looking to come back and make up for that. So, uh, and they make up for all these lost inspection numbers as well as citations and penalties. So we can expect OSHA, once they start— because what they've been doing, what's been happening, is basically every OSHA office in the country has had only 1 or 2 people at the office at any one time. The inspectors are working at home. They come in for a couple hours each. They have a certain schedule that they come in a couple, like 2 or 3 hours every week, and that's it, to print out stuff or whatever else they need to do. So they're going to be looking to move on. They're going to be there. Of course, you got the pressure from Congress to be more aggressive on enforcement and start issuing more unfriendly press releases. I can say employees' coronavirus complaints have dramatically increased, and that's going to drive the inspections. I mean, they basically said in their— in the stuff they printed, published last week, they said we're going to be focused on coronavirus complaints when we're doing our onsite inspections. And they're going to be initially looking at focus on the exposure and illnesses there. And so you've got to be— make sure— and that's why I'm saying having a control plan is so critical, because they're going to come in there kind of like when they do the 3S. First thing they ever ask for the opening conference is the 300 logs. Well, they're going to come into the open conference, they're going to ask for the 300 logs. They're going to want to see what if you've recorded any COVID-19 infections on the 300 logs. And then they're going to be saying, oh, by the way, tell us your plan, tell us what you're doing, tell us, show us how we're— how you're doing social distancing, show us how you're doing temperature taking, show us how you're doing your sanitation and disinfecting, show us what PPE you're providing for your employees and how you're training them on how to keep it clean and everything else like that. So we're going to be seeing a whole lot of A lot— there's going to be a lot of focus here by OSHA on COVID-19, that you got to be prepared and you got to be— have this stuff implemented. If you don't have your action plan in place, you're behind it. You're behind the times, and you're— it's going to take— you better start doing it now because once OSHA comes in there, you're not going to be able to change that. So let's go to the next slide. Okay. Okay. OSHA penalties, as you can see, increased for the last— since 2016 to 2020. January of this year, 2020. So now willful repeat, or a maximum penalty for willful repeat, is $134,937. That is not chump change, okay? And the serious and other than serious is even $13,494. So even that, to a certain degree, is, you know, is— and when you get— if you get a bunch of serious or if you get a bunch of willful repeat, you're looking at— could easily get close to a million dollars. So you need to be concerned about that. Of course, we've had recordkeeping changes in 2015, '16, and '17. We'll talk a little bit more about that too. And more employees are being placed on the Severe Violators Program too. And there's been an increase of push— I mean, during the Obama administration, they basically lessened OSHA's— or the standard that a whistleblower complaint had to meet to offer— made it more easier for them to follow up. And, and if you look at people that are exposed to coronavirus, and particularly on general, on general duty, but even on cost determination, a lot of this is going to be there in place pretty easily for OSHA to utilize. Okay, we'll go to the next one now. Um, local and state governments are looking at your company's safety record to determine whether you're going to be able to submit bids for government contracts. I, I see that only getting more stricter. Private sector companies are also looking at contractors, vendors, and suppliers' safety records and OSHA history. You know, there's these companies called Avetta and ISN. They're the two largest. They, you know, they're contractor certifiers, and you know, if you have, if you've got some, what would you say, if you've been getting more— if you have a willful violation or repeat violation or if you have multiple serious, that could impact your credit— your score on your— on those things, and you may not be able to bid for contracts. So you need to be aware about that. And of course, you have injuries and illnesses too, increased injuries and illnesses there. So I'm not going to go over this list. You'll have the PowerPoint. You're going to get two things from me, the PowerPoint Are you gonna— I actually— Martha's gonna— Margaret's gonna send you that, and, uh, and also gonna send— I have an ocean inspection checklist that she will send you. Uh, my secretary, my assistant's out today, so she will send that tomorrow. But, uh, so I want you— so you're going to be able to look at these. All I can say is you need to look at these things and realize these are what most frequently— when OSHA does an inspection, this is the violations they find. So, and they're all, obviously all the inspectors are up on each one of these particular standards. So we need to be aware of that. Next slide is the, I think the most, the most general duty clause. Yes. This is a, this is an older list, about 2016, but OSHA doesn't keep this list. So I, this is the only thing I've ever seen on this. So, but once again, these are the type of things that OSHA is citing companies for general duty. Next slide. I put these— this next slide and the— this slide and the next slide in the— because I wanted you to understand when I, you know, I get involved in ocean inspections, I would say 60% of the time I get called in when the ocean inspector's there, which is what I prefer because I can help, you know, I can kind of direct the inspection. I can, I can kind of make sure kind of makes— try to get us to keep us out of getting citations and stuff like that. Because once you get citations, it's a lot harder to get rid of them than if you get involved up front. So, but whenever I'm on a handling an ocean inspection and I'm watching the ocean inspector take photographs or something over there, I'm all— and I listen to his questions too, but particularly his photographs, I'm always looking and say, what does he think or she think, uh, is a violation here. Uh, and I've been doing this since, um, uh, 1980, so I've been doing this for a long time. But, you know, you can always tell the inspectors, they're looking at certain things and they're going to document what they think are violations. Well, if they, if they take a photograph of something, I'm going to be thinking, okay, what standard do they think is violated here, and how can I show that, well, this is not really a violation, that— or, or be able to show that we really didn't have knowledge about this, because that's one of the elements of the standard. As you can see there, knew, knew the hazard, or should have known with exercise reasonable diligence. So, so I'm always constantly thinking about these because I want to make sure I get all the evidence I can get to prove my client's not guilty of any violation. So all during the inspection, this is what I'm thinking about. If the inspector takes a picture of something and I'm not sure why he's taking that— he or she's taking that picture, I'm going to ask. I'm going to say, listen, I saw you take that picture of that thing there. Do you see that as a violation, a safety, health violation there? More likely safety, you know, and I'm going to just ask it flat out because I want to know if they think— and they sometimes are just taking it because they want to show something, I don't know. But then they'll say, sometimes they'll tell you, well, I think this is, uh, this is this type of violation. So, so, but once again, once I know the violation, I know what— I can know what the standard is and I can know what, what the requirements under the standard are. So we need to be— that's why I need to go to the next slide. This is the slide, this is the general duties requirements here. Once again, you're going to have the slides, you can look at that, but you need, uh, you know, and look at this with respect from a coronavirus perspective, okay? Condition or activity in the workplace presents a hazard. Well, we got We got that in coronavirus. The employer or industry recognizes this hazard. Well, we got that too. The hazard is likely to cause death or serious physical harm. Well, we got that too. And there actually should be a fourth bullet here, and then a feasible means exists to eliminate or materially reduce the hazard. Well, we got that. We know those things, all those things. So OSHA, you gotta understand, if OSHA comes in there and they're, they're here on a complaint based on a coronavirus thing, they already have the elements necessary to prove a general duty clause violation. So we need to be aware of this, and we need to be showing that we're doing— yeah, we got a feasible means exists, and we utilized it. We were using the temperature, we were using social distancing, we were using face masks, you know, we were sanitizing, we were disinfecting, we were doing all these things. We're spreading people out, we closed the break room, uh, or we took out all half the chairs or whatever. All these things are going to be— you got to— that goes to prove that you were you were following it. So let's go to the next slide. Let's see here. Oh, this is the rapid response. And I put this in here because right now that's what OSHA is doing primarily. And you need to be aware of what rapid response is. If OSHA takes it in, you know, some of this stuff would have been a formal complaint, but because they're not out there and they have no way to get anybody out there to go inspect this, they're just treating it as an informal complaint. And sending what they call their rapid response letters. So, uh, uh, you know, and why we want to make sure we're doing this response to the informal complaint, because if you don't do it right, then you're more— there's a good chance you may get an on-site inspection, because OSHA will eventually look at back and will do 10% of the informal complaints that come and do an on-site inspection or follow-up inspection. So they're going to look at you. So you need to make sure Your response is spot on, and you're doing that. Uh, we don't use the— I disagree. I don't— I discourage all my clients from using OSHA's Rapid Response Form because all it does is ask for too many admissions. So don't use that. You want to do your own investigation, and you want to report the findings. And this is keep it short and simple. Short and simple. Don't, uh, don't get into all— you know, you don't have to be You don't have to write a thesis on this stuff, okay, on your investigation. So you want to keep it down. You want to avoid making any type of admissions there so that they can use against you to show you knew about the violation and you was aware of it and it wasn't— you didn't do anything about it. You know, corrective action, or part of the things that you want to do in your response letter, is first of all you want to tell them how impor— how you— how you're committed to safety and health of your employees. You always kind of start off that. They talk about the investigation, and here's the things that we found, and here's the things that we've done to correct. If we thought there was any problems— there wasn't, maybe there are no problems, maybe what they're saying is— but we've, we've emphasized, we've gone back and made sure that everybody is getting their temperature tested. We went back and made sure everybody is getting their— has a face mask and they're wearing it. We are— we went back and made sure that everybody's socially distancing, staying 6 feet apart. We mark those spaces. And where we couldn't be 6 feet apart, if we had— if we were able to, we were putting a plexiglass shield between 2 people. That's what they did in the poultry— or, excuse me, in the beef packing and the pork packing industry because they had all these people there. I assume they've probably done that now at the chicken processing facilities too. So, but we want to talk about our— all the things, the good things we've done. And then we got the support documentation with our response letter. And the question becomes about posting because some, some area office say we would request that you post it. Then others say, well, you got to post this and fill out this certification of posting. Well, let me tell you right now, there is no OSHA regulation or rule that requires you to post an informal complaint or rapid response complaint. Okay, there's nothing there. You don't have to do it. Now, what I always do on these cases is I published the letter, I post the letter and our response at the same time. So we want to make sure that, um, uh, you know, that is so. But you don't have to post it if you don't want. There's no law that requires you to do that, even though they say you're supposed to post this and write, fill out the certification. There ain't nothing there that required you to do that. So, all right, let's go to the next slide. All right, and so here's the OSHA man wants to see our safety management. Let's talk about that. So now we're kind of going into the inspection portion of this. All right, next slide. Because we got— I put this slide in here because it is important to you realize that once again, remember those two burdens of proof that for the vertical and the horizontal standards, we— each one of both of them said basically required the same thing. You have to show employer knowledge. Well, how does OSHA show employer knowledge? OSHA shows employer knowledge through its super— employer supervisors. Whatever your supervisors knows or about the hazards or anything, you know as an emp— as the employer, as a company. So that's why they use supervisory knowledge is imputed to the employer. And so, and that provides us the information on knowledge requirements for both the vertical and the horizontal standards. Next slide. All right. Unpreventable employee misconduct. The reason I put this in here is because if you look at all the citations that were either withdrawn by OSHA or vacated by the Review Commission judge, 60% of those are probably, maybe even probably closer to 70% of those were the result that the employer was able to establish the employee misconduct. The defense is that we had a designated work rule to ensure safe and to avoid the workplace OSHA violation. So we have a work rule in place, we have a policy and procedure, we have lockout/tagout procedures in place, whatever. We communicate that work rule to the employees. Yes, we do our training. We train our employees on all our safety and health rules. So we— now this is the next two are the ones that employers most frequently fall down on. That we have— you take appropriate steps to discover violations. What does that mean? Well, that means that maybe you should have your supervisors or your foremen or superintendents or your managers or whoever they are, they should be out there walking the, the worksite, making sure to observe that the employees are performing the work properly but also performing the work safely and they're not violating safety rules. And you should be documenting those observations. You should be requiring your supervisors or foremen, you know, you walk your site at least 2 or 3 times a day, and here's a form we want you to fill out noting the date and time that you did this walkthrough and determine if you saw any violations of our safety and health rules. And then, so that's how you do that. Then the last one, once you find a violation of our rules, then you discipline people for those violations. Now, this is, I say to people, most of— a lot of employers fall down on this one too, is because people don't like disciplining people. It's not warm and fuzzy. So you need to realize that you have to discipline, and you got to document it. If you don't document, it never happens. You know, I've— a lot of times I said, okay, well, um, do you have any— I'll go through this whole analysis here. This clearly, this is a case of employee misconduct. And then we get to the last one, have you ever disciplined anybody for safety and health rules? 'Oh yeah, we do that.' Well, can let me see the documentation? 'Well, no, no, we just do oral, we just do oral reprimands.' Well, that don't cut it. Sorry, if you're not documenting, you can do oral reprimands, but you bet as well, sure as heck better document it. And you should have a progressive disciplinary policy so you know that people can move up the scale. So, uh, and we're— but the key is documenting all these things. So, and once you have that, that's— once you have all those items, then you're in great shape to be able to get the citations either withdrawn by OSHA or thrown out by the judge. Next slide. Here's our pre-inspection action plan. Here's the things we need to have. We have to make sure our OSHA poster is up. I mean, they're free. You can download them off the OSHA website. It doesn't— you got to say that. Then you also need to, you know, Notify, put notification responsibilities, you know, who's the contact person among your employees if somebody gets injured? How you— who's going to be— who's that contact? When OSHA comes on site, who's going to be the person? More than likely, in a plant or something, more likely the receptionist is going to be the one. And the— and then, and also we need to note about any unusual safety and health issues that are present. So But like I say, when OSHA comes on site, they usually— you got to figure out who's the first person. And this is the assignment of responsibilities. Which is what you need to say. If OSHA shows up, Joe here, the safety director, is in charge. If a sheriff is here and is here to serve a warrant on somebody, well, then that's Mary's. She's the plant manager. She should be doing that. But we need to have that all assignments made. Of course, we're going to need to make sure we have all our training and record keeping there so we can— because OSHA is going to ask for it. We need to know what standards, OSHA standards, are applicable to your operation and make sure we're fully compliant. You would be shocked how many of my clients that I've been— they call, like, we're going through these things and I'm saying, well, where's this? Well, we don't have that. I said, well, but if applicable— well, you think it's applicable to us? I didn't think it was applicable. We don't know. So you should know every OSHA standard that's applicable to your operations and that you're in full compliance with it. And know your COVID-19 control plan. Ensure that's been implemented for all protected actions and precautions, because I can promise you there are going to be— there is going to be— OSHA is going to be focused on these things. They're going to be coming in when they start doing inspections again. There's going to be a lot of COVID-19 inspections and citations. We need to have the right equipment for the inspection. One good thing about having a cell phone with a camera is now we don't have to worry about having a camera. Everybody has a camera, so we can take the pictures there. We're going to review our previous citations because they form the basis. If you have a— if you have previous citations and they've been— and they've occurred in the last 5 years, there's going to be the basis for a repeat violation under OSHA. And as you saw how the $134,000 penalty, that's a little bit of muscle money. So we're going to look at our insurance and third-party audits and also any other periodic reviews that we've done. Why this is important? Because OSHA— these documents are generally not privileged documents because they weren't made in anticipation of litigation. So you need to be aware of that. And so OSHA could get a copy of that. And so if you had a third-party safety consultant come out and do the inspection or do an audit on your plant, you found all these things, and he gave you this report saying, here's all the problems I think you got to fix, and you don't fix them, guess what? That's a willful violation. And you got all the evidence. You knew about it. And you didn't do anything about it. So it's not— you had knowledge and have the willful nature of it. So we're going— that's why these audits— I'm a big audit person. I believe fully. I do a lot of audits for my clients. But, you know, if you're just going to get it done and you're just not going to do anything to the findings, then forget. Don't do— don't bother. You're just hurting yourself. All right, next slide. Uh, here's the inspection priorities. People always want to know why that is. I know I've only had like 2 or 3 imminent danger situations in my entire legal career. So I've handled about 400 OSHA fatality investigations though, so I know where those are. And so this, uh, you know, uh, and of course you get these inspections because of our— if you're, if you're contacting OSHA, if you have an injury and you know the requirement under this record-keeping standards, if you haven't work-related injury that results in someone being hospitalized— well, if you have someone— if it results in a death, then you have 8 hours to call OSHA. And I guarantee when you call OSHA, they're going to show up. If you have a work-related amputation, you have 24 hours to notify OSHA, and they're going to come out for amputation. If you have the hospitalization of one or more employees, you have 24 hours to contact OSHA. For work, and that's for a work-related injury again. Now, if it's just one, then they may just do a rapid response. As a general rule, that's kind of where they do it. And then the last category for recalling OSHA is, uh, the loss, physical loss of an eye. I've been doing this, like I say, since before 1980, and I've never had a physical loss of an eye, so I just, I don't know where it's coming from. So, all right, let's go to the next slide. All right, we always remember these things during the inspection. It is our facility, we have certain rights. Right, that the inspection becomes— be counted in a reasonable manner and at a reasonable time. Now the reasonable manner is, you know, they can't badger— we can't— inspectors can't, you know, threaten or badger our employees. That's not a reasonable manner. And they can't come and do the inspection at 2:30 in the morning if we don't have anybody there. That would not be reasonable. So also they have to complete the inspection once they show up that day. You need to mark that. You should be documenting all this stuff. When they show up, you should know What exact time did they arrive? When did you start the opening conference? What was the person's name? Did you take a picture of his business card? All this stuff. What documents you took, where else you— where you went, who— who—

who—

which employees did the inspector interview? All this needs to be documented. And you'd be shocked how often I get these things where I come in after OSHA's issued citations. And that's— I could say about 45% of the time I'm getting called in they already have the citations and I ask them for this documentation and they don't have it. Well, guess what? If you don't have it, that— when that's saving at the time of the inspection, it's really hard to recreate the stuff later on. So you need to be aware about that. Um, but you, like I say, when the 6 months starts, that's why it's good to document that, because you want to know when that— when they got to finish up and issue any citations. So of course we're going to be cooperative and responsive, but we're going to maintain control during the entire inspection. That's very important. Next slide. Everybody says, well, can I have OSHA come back? And the answer is no. There is a criminal statute on there in the OSHA Act that says it's a criminal violation if you give advance notice of an inspection. So they're not going to come back. I get this all the time from clients. Ed, OSHA's here. Listen, this is really a bad time. We're in the middle of doing our audit, our annual audit for the— you know, our— for financial purposes there, they know how much supplies and everything we have. Can you just ask them to come back in a couple days because we'll be a lot better, but today's the worst day? The answer is no, they will not come back later. They will give you 1 hour to get somebody there if you need a safety— your safety director or whatever, or whoever you want to have, someone from the home office if it's nearby. They'll give you 1 hour, but once the 1 hour is there, then they're going to just take that as a refusal entry and leave. So, all right, next slide. And then if they do that, go ahead and get this next slide. I'm not too worried about that when they— if they leave, because I always just call them and say, listen, we were trying to get our guy there. He's here now. If you want to come back now, you want to come back first thing, it doesn't bother me. So we want to get a warrant. That's a policy call. Some companies actually have that as a requirement of all— if any government official comes in, they have to have a warrant because come into the property. I don't necessarily believe in that theory, but, but sometimes if you have a fatality, particularly, you may want to have additional time to be able to manage all everything else. Because, you know, I remember all the different agencies that show up and you're dealing with when there's a catastrophic accident or multiple fatalities and stuff like that. I had I dealt— when I was at OSHA, when I headed up OSHA, we had the Savannah Imperial Sugar explosion there, right on the Savannah River, right next to the port authority. And, you know, we were— we had— OSHA was on our— we had an office in Savannah, so we were on site within a half hour. We were there very quickly. But by the time we got there, they already had a number of people. They already had— the police had obviously been called, the fire department had been called, The rescue people had been called, the ambulance people, all that stuff. Of course, the news media is there and they're trying to deal with that. That's— see, this is all the things you gotta— why you have to deal with. That's why sometimes you may need to ask for a warrant because you just may need the time because you're trying to juggle too many balls in the air. So, but in Imperial Sugar, you had— you did have that, and because it was an explosion You know, our guys were there and I get a call, I get a call late that afternoon and they said ATF is here. And I said, what are they doing here? They said, well, it's an explosion, so they're there to check to make sure this is not a, uh, this was not a terrorist act. I said, okay, but they won't let us go in. They said we have to stay out. And I said, well, do they people have any, any experience on train, on safety? And they said no, but they say we can't go in. So, well, let me talk to the head guy. And he said, I said, listen, You know, we got— I got some really good people there. I got one engineer there. I mean, this place is still smoldering, so you really don't— you got to be a little bit careful. There's a lot of safety hazards here. My guys are trained to look for those safety hazards. I got a structural engineer here with— with there. So, you know, and he said, no thank you. I said, no, no, really, this is really— you want to— we can really help you. He says, no thank you. Well, you see, they have guns and we don't have guns. So they got to decide. So that's just one thing, but that was the next group that there. Then, uh, then later on that late afternoon, early evening, the state EPA showed up and they were asking questions. And then the next morning, the Chemical Safety Board from Washington, D.C. shows up because they had an explosion. So, so you guys see, sometimes you may have to do that, but you got to remember, these warrants are ex parte. You don't— they go— if you turn them down, if you turn them out and say you can't, you need to go get a warrant, You're not going to be able to be in court. They're going, your honor, you shouldn't grant this warrant. So yeah, because it's ex parte, they go to us. Usually they go to us, federal— oh Lord, it's not a district, it's not a district judge, it's a— oh man, anyway, my mind's going bad. But they have these judges that are right below the district judge to handle these type of cases. They handle all this routine type of document requests and everything else like that. So magistrate. So anyway, let's go to the next slide. The opening conference to me is one of the most important parts of an inspection. If you really want— if you want to be focused on that, they got it. You got to ascertain the purpose of the inspection. And so, so you gotta ask them, why are you here? Now, if you called them, you know why they're there. If you've had a fatality, you know why they're there, even if you had a chance— not a chance to call them because even though you have 8 hours to call OSHA in a fatality, the hospitals call them, the police call them, the EMTs call them, so you're not going to get 8 hours. You might get 4 hours if you're lucky. So, but you need to ask them, why are you here? Do not be afraid. And if they say we're here on a complaint, a formal complaint, you're going to say, well, I'd like a copy of the complaint. You're entitled to a copy of the complaint. You need to get a copy of the complaint because once you have that, then you can set the scope of the inspection. Because if it is— if the complaint is, you know, uh, not using lockout/tagout on this particular machine, that's the scope of the inspection. It's not all over the plant, it's that particular machine. So you got to maintain that as best you can. Now you got to watch out because you got the Plain View Doctrine. Did I put it on there? I think there's somewhere, right? Anyway, the Plain View Doctrine is that if OSHA, while they're doing their walk around, if they see what they think is a violation, they have the right to go to that area to check it out. So you do have— that's why it's so hard. You got to really, you got to stick on top of it. We got— and at the opening conference, you want to set the ground rules. You say, "Well, Ed, what's the ground rule?" Well, here's the ground rules. First, you're going to say to them, "Well, um, we're glad you're here. I'm assuming that you, uh, will probably want to do a walk around once we finish the opening conference." "Well, of course, that's what I'm here for." "Okay, that's fine, but here's the rule here is that you cannot walk around the plant by yourself." You must have at least one and preferably two managers with you at all times when you're walking around the plant. So that's rule number one. Then the second rule is I'm assuming you're going to want some documents. Well, of course I want some documents. How am I going to know— how am I going to find everything out if I don't get documents from— well, that's fine. We'll provide whatever documents you're entitled to, you know. And you sometimes— I shouldn't say sometimes, a lot of times now the inspectors have this checklist. I don't— I think they're all using the same list. And basically it's a list of all the different OSHA standards, and they start checking which stuff. And it's, I want this stuff, I want this stuff, I want the lockout tagout policy, I want the talkout tagout procedures, I want your training records, I want your 300 logs, I want your PPE stuff, I want all these things. Well, guess what? If this is just a lockout tagout complaint, they don't get your hazard communication policy because it's not relevant to the inspection. But you need to be able to know that. And that's why you're gonna be setting the ground rules. So that's the ground rule number 2. If you have any, if there's documents you want, then we're happy to provide them, but you need to give us a list of what you want. If it's gonna be more than 1 or 2, then you need to give us a list of those so we can get those documents, know what you want, and get you the documents that you're legally entitled to, okay? Now the 3rd ground rule is, I guess you wanna do interviews and witnesses. Well, of course, I always wanna interview, gotta interview witnesses, I understand that. So, well, here's the ground rule for this, is that if you're going to interview an hourly employee, or all interviews are going to be conducted off the floor because it's not safe to do them there. So we're going to conduct— all interviews are going to be conducted in this conference room where we are. We're going to make this available. So if there's an hourly employee you want to talk to, we're going to get that employee for you and bring them right here. Now, the good thing is that gives you opportunity to talk to the employee and say, You know, tell the truth, and we'll get to that in a minute, some of this stuff. But you want to make sure, you know, they know their rights, and, you know, because they're not going to— and with respect to interviewing our management people, supervisors and managers, the ground rule is you need— you will not interview them in private, that you will— we will have a company representative. And if it's a fatality, we're going to have the company attorney present for all management and supervisors interviews. So that's what it is. So that's our ground rules. Don't volunteer information. Let me tell you something here. Some employers think that if they tell the OSHA inspector everything they know and give them every document they have, that somehow that's going to make things better. Well, it doesn't. So don't even think about that. So don't volunteer information. We're going to treat the inspector in a professional manager— a professional fashion. We're going to notify our corporate officials and councils. You need to have a policy on that. You know, you would be shocked how many times I've gotten calls from clients and said, 'Hey, we just got a— we just got citations at Plant A.' And I'm going— I said to him, 'Well, I didn't even know you had an inspection at Plant A.' He said, 'I didn't know either, just till now, until we got these inspect— until we got the citations.' You need to make it perfectly clear to all your facilities, the facility manager, the safety— if OSHA shows up We want to be— you put them in the conference room and you call us then, right away, period. No, no, no, buts and buts, whatever it is. So we need to do that. We're going to contract— if you— we're going to coordinate with on-site contractors and vendors. OSHA is going to ask you, do you have any vendors or suppliers here? And if they are, then they're going to be brought into the inspection more than likely, and OSHA may open an inspection on there. And of course, look, watch out for the COVID-19 questions as a setup. They're going to be asking— they may ask you questions about, well, tell me what you've been doing on social distancing, or, you know, are you providing masks? What have you done in the masks? All these things are kind of trick questions. I mean, they're out there, legitimate questions to ask, but you better be careful about that because they're trying to set you up for citations. Next slide. All right, as I said on the walk around we had before, employer has a right to a company compliance officer at all times. We should have two 2 people with every compliance officer. One to be there to kind of discuss and answer any particular questions, but being careful not to make admissions. And second person to be taking and documenting where you all went. Who— what, you know, what questions were asked. Document where you went. You know, document what photos were taken, all those other things. So that's what I would say there. We're going to have the compliance officer comply with all our safety and health rules. If we have certain training, there are plants that have certain training, a lot of oil refineries and chemical plants have specific training requirements that are fairly detailed that like you get to have to sit in for like an hour or so on a video. So, if we make sure that they follow all— OSHA follows all our safety rules and regulations and whatever we have, they're going to be fine. If they have to watch it, If we have a video for everybody else to watch, they're going to watch it too. And I mentioned about taking accurate notes on areas visited, all discussions there. Do everything that Kosho does. Take photographs. If he takes a photograph, you're right behind him taking the exact same photograph. If he's using a video, you know, you can do that on your phone, you're going to take a video. Air monitoring. The thing I want you to always remember is if they're going to do air monitoring, we only— we're We're only going to allow air monitoring when we can do it side by side. I mean, I get these calls all the time. OSHA's here. Yeah, I know, you already talked— we talked about that. They just finished— we finished up the opening conference and they said they want to do some air monitoring today. And I'm saying, well, that ain't going to happen. And I said, what do they want to do? Well, they said they want to do that. And they said, well, we told them that and they said, well, we'll do it today and you can do it tomorrow. The answer to that is no. We always do side by side. If you let OSHA take air monitoring results, you are stuck with those results. And let me tell you something, they have really old equipment. They don't really calibrate that stuff very well. So you got to be really careful about that because you really did. So anyway, next slide. We got to maintain control, limit the areas. See, once again, during the walkaround, Once— if we— if— unless it's a wall-to-wall inspection, then they can go anywhere in the whole plant. Then we need to, uh, we need to tell, you know, we're going to be— we're going to limit the areas to the complaint, saying, well, the complaint was here. If they try to go someplace else, what are you going to do? You say, well, hold it, something, you know, the complaint said was this, and, uh, and now you want to go to this Department A? You said you want to go down to Department B? Well, well, what's the reason? What's the basis for going Department B? The complaint was on Department A, and they'll come up with something and try to, you know, say, well, what they do that a lot of times they do this, well, we interviewed some employees and we saw, we saw, or they told us there was some safety hazards over here. Well, that was, you know, to a certain degree, that's pretty, but did you ask them about those or did they tell you? Because if they're asking, that's beyond the scope of the thing. So you want to make sure we do that. Watch out for the, uh, those responses to the inspector. You know, I— a lot of times when I'm doing— I'm there on site, they'll be asking questions and I'll say, well, we'll find out, I'll find out, but get that for you. You see, I can say that to them. So, um, particularly on the COVID-19 question they started. See, I already said about doing side-by-side monitoring. This is how you maintain control. Now, we're not going to stage the event or the accident. Let me tell you something. I've had numerous times where clients have called me up and said, 'Hey, we had this accident.' I'll tell you, the one I remember the most is— this one, the first time it ever happened, really. I had a client that was at a forklift. The tire had gone bad. The guy had pumped up the, uh, I jacked up the forklift and I removed the tire, the tire there, and he was straddling it. He was like sitting, you know, he had his legs separate between the two places where the tire went, and he's yanking on this thing. And when he did that, the tire came off and the jack fell down and crushed his leg. Well, OSHA is here. They called me up and said, inspector wants us to go and put the jack back up there as it was. You know, because I said, well, no, and I said, no, we're not going to do that. We're not staging an event. We're not actually— we're not going to stage it. The jack is there. They can take pictures of that. The forklift is there. The wheel's there. Everything. They can just take the pictures as is. So we got to do that. And of course, we're not going to destruct— no destruction of evidence or any type of misrepresentation. And even if you do it inadvertently, if you say something incorrect, you want to— you need to correct it. When you finally— if you think about it and say, oh no, that wasn't right, you can say, oh, you know, I mentioned this, I said this. That's not really true. This is what really is the true thing. So next slide. Okay, now we talked about the hourly employee interview. OSHA takes the position that these interviews are, that they're, these interviews are protected by the Informer Privilege. Unfortunately, they don't seem to understand what the Informer Privilege goes to the informer, i.e., the employee. So if the employee wants to have somebody there, they can. OSHA doesn't like it, but if the employee— it's— but the employee makes the decision. But the employee has to be asking for an employer rep, another employee representative. Now, if they have a union, they're going to have their union rep, okay? That's what's going to happen. But, you know, I've had it where I've had other— you know, we've had the supervisors, they want to see— they want to— they they feel safe with the supervisor and say, I want my supervisor here while I'm being interviewed. OSHA doesn't like that. Sometimes they'll say yes, sometimes they'll say no. So anyway, but before they go in there to interview OSHA, you want to tell them about their, his or her rights. You know, you don't have to sign anything, there's no requirement. We want to tell them too, first thing I always tell them is to tell the truth. I say, when you, before you take them in there, tell them at least 3 times The most important thing is to tell the truth, you know, but you need to know you don't have to sign anything. Don't— you don't have to— you don't— if you don't know the answer, you can say, I don't know. That's a perfectly legitimate answer. Don't let them lead you. Don't let them— don't guess. You're not required. You're not— don't guess or speculate, you know. They may ask you, well, what do you think caused this accident? Well, if you weren't there, you say, I wasn't there. So you tell these— you can tell the employees this. You know, there's nothing illegal about that. But make sure you tell them to tell the truth about 3 different times. And then you also tell them, you don't have to sign anything. There's no requirement that you sign. Now, OSHA's probably going to ask you to sign a statement or something like that. It's up to you if you want to sign it. I'm not— I'm not saying you can't sign it. It's up to you. But if you're going to sign it, you need to do 2 things. You need to read it very carefully and see that what you said is what they put down instead of what they really wanted to hear. And secondly, you need to ask them for it, that if they're going to give you a copy of your statement, because a lot of times they won't give them a copy of the statement. Well, who would sign something, didn't get a copy of it? It's a legal document. So, but we always got to remember that employees have whistleblower rights, you know, so that we can't, we can't discipline them or discharge them or anything else or treat them unfairly because they participated in the inspection. Next slide. Management and supervisor interviews, always another management or counsel present. Fatalities, always have the company attorney there, period. Just can't not have because it's— you're opening yourself up to possible criminal citation or referrals to Justice Department, you know. So, but if it's a supervisor, a manager, anybody that can hire or fire, discharge, oversees employees, directs their work, those type of things, those are managers and supervisors. We're going to limit the response of the— to the inspection. I'm not going to let OSHA do an inspector do a fishing expedition. Started asking about questions that had nothing to do with the complaint. And if they do that, you just say, hey, this— that's what is— how does that have anything to do with the complaint? We're not going to allow tape recording, and we're not going to— you're going to make it pretty clear to our guys that, hey, you don't have to— you haven't— you're not required to sign anything. If I were you, I wouldn't sign anything because all they're going to try to do is use it against the company. So if I were you, I wouldn't sign anything. And that usually works enough to they don't sign anything. I never tell anybody they can't sign something, okay, because I don't want to be seen as being interfering with the inspection. Because, you know, I'm just— it is what it is. I just kind of say where the chips fall, but we don't have to hurt ourselves. We don't have to shoot ourselves in the foot either. All right, so let's go next slide. Here's the type of documentation they're going to be asking for, record keeping, the 300 logs. You have 4 hours to provide the OSHA 300 logs to them. Uh, you're going to ask for safety training, safety health policies, monitoring results, medical surveillance. Remember I talked to you about previous safety audits, how to use those against you? And then of course there's certain documents that the standard automatically requires you to keep. So let's go to the next slide. Closing conferences are the employer's really opportunity to free, free discovery, because they're going to basically say, here's what we're thinking about citing you on. Okay. Well, let's start with the first one, okay? You're thinking about a lockout/tagout. Now, what did you specifically— what machine specifically did you not see lockout/tagout on? You know, did you look at the particular machine's lockout/tagout procedure? You know, those are the type of questions you want to kind of sit. OSHA inspector is going to tell you about the unsafe conditions they observed. They're going to basically give you a brief description of what violations they think you're going to get. As a general rule, they're not going to tell you about classifications or abatement dates because they don't know. Of course, you want to make sure you note any abatement during the inspection. If there's areas that you think, oh, I saw this as being a problem, we, we thought it might be potentially a violation, so we corrected. Let the inspector know about that. We're not— we're just saying we saw something we thought that you had indicated was a concern to you, and so we corrected that. So we have that. Of course, Ursula is going to ask for or give you suggestions on possible corrections. Now unfortunately, a lot of the inspectors, uh, there's a lot of new inspectors that really don't have had much experience. Most of the inspectors don't really have some type of business background or work that did work in a company or didn't work in a manufacturing facility or something, so they're limited on their experience. But sometimes they'll start telling you all the stuff you need to do. Here's all things how you can update this and fix this stuff. So I always take that with a grain of salt. Next slide. All right, we might request that they provide photos of monitoring results, but as a general rule, they won't do that. OSHA inspector will tell you about your appeals rights in there, and I put down this is not a time for debate. Everything in red is really important. You're not trying to debate this, that they're just, they're just there to tell you what we're thinking about it. But all document requests from OSHA need to be viewed and approved by counsel prior to be provided to OSHA. All documents will be date stamped. Now, date stamp is— and this is very important because I have had a lot of times where I ask people, well, tell me, what documents did you give them, give OSHA? Well, we gave them some documents. I'm not exactly sure. Well, let me tell you something. First of all, we're going to keep a separate copy of everything we give OSHA. We're going to number them from 1 to however many documents there are. On, it's going to be, is going to be documented. That's what the Bates stamp does. It individually, every page gets the next, next number in succession. Yeah, so, and so you can always, that way you know exactly what documents you gave OSHA, and they can't try to slip us and say you didn't give us this or you didn't give us that. When I say, oh, here it is, look at page 327 on the documents we provided you on such and such a date. So it's just going to be more— this is just critically that you keep on top of all that there. So next page. Uh, the citations have to be in writing. They have to describe exactly what you're being cited for. They have to be timely, i.e., they have to be filed within 6 months of the start of the inspection. Basically, uh, they're going to have a penalty amount. They're going to be, as a general rule, they're going to be served by certified mail. Now if you have a fatality or some type of catastrophic accident, those are normally sometimes— they're all normally always reviewed by the regional office and sometimes by the national office. If you have that case, then they're more than likely that they're going to serve the citations on the last day and hand serve them. They're going to hand deliver them to you, so. And then you must post them for 3 days. You have to post the citations for 3 days or until they're abated, whichever is longer. So that you just need to kind of discuss with the counsel, your counsel about that. Next slide. Yeah, we've already gone over the penalty amounts. As you can see, these willful repeat are some serious penalties. So anyway, let's go to the next slide. These are the criminal violations. As you note that last one, you can get a term of life for trying to murder or attempt to murder the compliance officer. So don't do that. All right, next slide. Uh, here's your options. Once you get the citations, you have several options to do, okay? You can take— you can agree to the citations and pay the full penalty. Notice what it says right after that. This is a no-no, okay? We're never ever going to do that, okay? Never ever. Never ever ever. At a minimum, you should be going to an informal conference because even if you're guilty of all the violations, As a general rule, if you go to informal conference, they'll drop the penalty 30% if you ask them and show you've done some stuff. They'll be willing to do that. They may do more. You may be able to, you know, depending on what your evidence you have, you might be able to convince them to drop some citations. But so you can have— and but the informal conference, and you got to work out an informal settlement too. But all that has to be done within the 15 working days because two— one of the things— one of two things are going to happen. Once you get the citations and the 15 days is— and you're at the 15th day, either you have entered into an informal settlement agreement signed by OSHA, or you will file a notice of contest. This is— this 15 days, and then say some state plants is 20 calendar days, so it— but feds is 15 working days, okay? So it doesn't count Saturdays and Sundays or holidays. So you got 15 working days to either work out an informal settlement, or file a notice of contest. This is a drop-dead date. This cannot be changed. I have clients that call me up, "Hey, Ed, we're coming up to 15 working days. Can we just ask OSHA for another 10 extra days?" The answer is no. This is not, you cannot think and change. I don't care what the OSHA inspector says. I don't care what the OSHA area director says. This is a drop-dead date. You miss this date, you just write the check, okay? And then you can go to either a formal settlement after— and I would say probably 60% of the cases that OSHA has, they settle after the Notice of Contest has been filed in a formal settlement. And then you can go to a hearing and before the judges in the OSHA Review Commission, Occupational Safety and Health Review Commission, judges, administrative judges. Go to the next slide. And they hold a hearing. The hearing is— do we have another slide? I thought we had one more slide there. Yeah, it's at the review commission. They— it's very much like federal district court. You file a formal complaint and do it and then— or OSHA files a formal complaint. You file an answer. You do discovery, interrogatories, request to produce, request to admit. You can take depositions, the whole thing. And then the hearing is before administrative law judge. Uh, he or she will then issue a written decision. From that written decision, either the parties can appeal, do a request, a petition for discretionary review to the 3 members of the review commission. I was chair of that commission for 5, almost 5 years. So, uh, back in Bush 1 and 2 years in Bush 2, 2 Bush, 3 years in Bush 1 and 2 years in the Clinton administration, I was at the review Commission. So, um, sometimes they— you can petition sometimes, but it used to be when I was there we granted most petitions. Now they don't grant a fraction of them. It's really kind of— I don't know why. And then of course you can go to expedited proceedings, but I'm not a big fan of that, so don't worry about that. So, and from then, the three mission— if the Commission takes it, they'll issue— they'll ask for briefs, then they'll issue a written decision. From there you can appeal that to either the Federal Court of Appeals of the state that you're in where the accident occurred or this inspection was, or the D.C. Court of Appeals. So next slide. All right, so now we've gone through all that, and so, but this is very important. I mean, and that the ocean inspection checklist I'm gonna have, Margaret Spence, you're gonna see that that covers all these things that we just talked about. You can keep that in your desk drawer. If you're a contractor, you can keep it in your truck. Just so when OSHA shows up, you can just pull it out, look at it, and refresh your memory about what you can do and what you can't do. All right?

Margaret? Yeah, this is Ed's contact information. So give us one second. Let me switch back over to— let me switch back over to the Q&A and open it up for questions. We've got a couple questions. So Ed, let me tell you what's—

what happened.

Happened. I have a question from someone, a couple people asked it. One of the questions was, if we mandate masks and the employee is not wearing the mask, okay, and we've put that in our rapid response plan that we've got to wear masks and the employee says, I'm not wearing it, and they aren't wearing it because they have a medical condition or something else going on. Right? Then what happens? Can we discipline the employee, or is that a whistle—

Yeah, let's talk about just the first part of that. If they're not wearing a mask and we have it in our COVID control plan that they gotta— everybody has to wear a mask, uh, that's a work rule, that's a safety rule. And so now if you don't follow safety rules, you get— you can get, you know, disciplined or terminated. Uh, now if you add a little wrinkle to it and say, well, they're, they're physically not a— they're not able to, uh, wear a mask. So that kind of kicks it into the ADA realm, and there then you would have to basically say, okay, what can we do to— what can you wear? I had this question the other day on the construction site. Yeah, the same thing that the one guy had, and the company was not requiring it, but the general contractor of the whole project was requiring everybody to wear a mask. And this one guy had COPD, said he couldn't wear a mask because he wouldn't be able to breathe. And the answer— and so you have to ask, well, what can we do to reasonably accommodate this person? And the answer was we can do— get these supplied air type of PAPR, type of these light air things that have, you know, depending on where they're working, so that they would be— you know, it's a battery thing in that they're not breathing. It's a pump. So it pumps the fresh air into the mask, and so they don't— so it's not a hazard. They should be able to wear those, you know, that's just like normal breathing there. Or you could do a supplied air with hoods, you know, you know, stuff like that. So the answer— that's the answer. And then if there's— if they don't want to take a reasonable accommodation, then that's okay, because then, okay, if you're not willing to do that, sorry, you can't work here.

So we had another question, um, where the employee went out and had COVID-19 test on their own, okay, and they refused to tell the employer that they had the COVID-19 test. And the employer now wants to say, as a part of their OSHA compliance and they're making sure people are safe in the workplace, they're wanting to say They want to make a rule that says if an employee goes out and gets a COVID-19 test, they must notify us that they have that test. So my question is, can you do that?

Yeah, that's a good question. I'm not sure the answer, but my gut feeling is you can't. I mean, you can't ask for the medical results because that is a covered— there's a they had the test done by a healthcare professional, those are medical records protected by HIPAA. So you wouldn't be able to do that. My thought is there, you know, I think— I know the EEOC has issued their guideline— their guidance with respect to what kind of questions you could ask, and I don't know that— that I don't think falls in it. There's a whole bunch of other things you can ask, you know, have you been exposed to anybody that has it, have you had any fever, have you been coughing, all these other things. I'm just not sure. I think my recommendation would be to, for the employer to just go have his plan of action just to go ask all the questions, do the thermometer, take their temperature, ask the questions that the EEOC says is okay to ask, And, you know, if they want to volunteer that, I mean, I don't know. You know, you got one thing too is let me tell you something about the COVID test and especially the antibody test. These aren't too accurate, okay? There are a lot of false positives, a lot of false negatives. So my thought is the best thing to do is just do your best that you can do on determining whether or not the employee has— do you feel sick? Have you been sick? Have you had coughs? You have— what all— all those questions that on the— on the COVID-19 and take the temperature. And, you know, that's all, you know. Well, you can— but you know what, you can ask the question though. It's not— I guess you could ask the question, have you been determined to have COVID-19? Or have you been around anybody that has had the COVID-19? Are you exposed to anybody? Those are the questions that the EEOC says you can ask. So I guess you— I guess the answer is you could ask that— you could ask the question, you know, have you been— have you— are you aware if you've been advised that you have COVID-19?

So the other question is, can the employer make COVID-19 testing mandatory? So, Barbara, thanks for posting that question.

Yeah, the answer is, I think the answer is yes. You just got to, if you're going to, you know, it's, you're going to have a lot of expense and it may not be as helpful as you would like it to be because a person can get a COVID-19 test today and be exposed tomorrow and have the virus and the test says he doesn't have any problem.

Right, right. So I'll tell you my experience.

That's why we do— we can take an employee's temperature every day. That's feasible. Doing a COVID-19 test every day is not feasible.

So, um, so Barbara, to answer your question, I work with some of the larger meat producers, and that's the challenge. The challenge is if you test somebody every 14 days You have to have the rest of the plan, which is why I'm putting together this course, because it's not just testing them. There's an entire process. So for example, you, you have to really begin now to track who did you test, who's due for a second test, who's in quarantine because you're waiting for the test, who's out of quarantine, who tested positive, who had to go out. Then you've got to contact trace the people who, um, who tested positive, who did they come in contact with? That is— I can tell you, I'm doing that right now for 3,500 employees. That is a nightmare scenario. Trust me, it is not— it seems on paper that we can just go out and start testing employees every 14 days. First off, the tests run about $100 per test, $119 even if you negotiate it. And then on top of that, you then have to really keep this massive recordkeeping requirement, even if you have 200 or 300 employees. So that's one thing. So, you know, that's a whole nother— that's a whole nother story. That's a whole— I literally am putting together an entire 2-hour workshop that I'm going to break it up into 2 sessions. Around this particular thing because I've learned so much trying to implement it on a small scale that I really think that HR needs to get this on a bigger scale. Um, so Rachel asks a question, um, if you're a small privately owned dental office with 10 employees, is OSHA likely to still come in on a whistleblower complaint to a 10-employee operation?

Yes. Okay, so there's no, there's no numbers, just The 10 employees, 10 or less employees is the OSHA recordkeeping. You don't have to keep OSHA, you don't have to keep your OSHA 300 logs, but you're still required to do the OSHA recordkeeping reporting. If you know, the fatality report to OSHA, fatalities, hospitalization, one employee, amputations, loss of an eye. But that's, yeah, that's the only, that's only the 10 thing 10 or less is that— if you got one employee, you're covered under the act.

Right, okay, okay. So Paul asked the question, um, can you confirm if OSHA comes for a specific incident not related to COVID-19, we aren't obligated to answer those questions or show any documentation, example, mask procedures or cleaning procedures? So if they showed up for a violation or a complaint about, let's say, machine guarding, can they then ask COVID questions during that visit is the question. I think, Paul, I think that's what you're asking. If you're still on the line, you can clarify that for me, would be great. But I think that's what he's asking. If they show up for something else, can they then ask me about COVID-19 compliance if they're there for something else?

Yeah, that's a good question. Normally the answer is no. I mean, You get it, but you know, right now, I mean, OSHA is talking about that they're going to be focusing on covert inspections, but I'm assuming that they're going to be from complaints, formal complaints from employees on COVID that did it. If they're coming in on machine guarding and they want to start talking about other things, I think you can kind of say, well, you know, how is that related? And make sure you get a copy. That's why you get a copy of the complaint. You are entitled to a copy of the complaint. You need to get a copy of the complaint right at the— right at the beginning of the opening conference, period. So that they start asking questions about COVID-19 and say, well, you know, you're here, your basis of your inspection is here based on, on the, on the, on the machine guarding, and that I don't see how that really applies to that. I don't really want to get into those type of things. We have our plan, but we're not going to We don't— that's not what the employees complain. That's the only— your jurisdiction is based on the machine guarding questions. Now, they can do interviews and stuff like that, and they claim, well, we got complaints from the employees, concerns about the social distancing, the use of PPE, you know, it's the disinfecting, the whole bit, you know.

So Paul sort of followed back up, and he said it's a fast food industry, and he's looking at— I'm assuming again, Paul, that you're looking at, you know, what can they ask if they didn't come for COVID-19. But I think in the restaurant industry, I think you are a prime target for COVID-19 inspections. And so I think, in my opinion, I mean, I could be wrong, but Ed would surely correct me on this, but I think if you're in the restaurant industry, you're in COVID land. Completely. So it's going to be your mask, your cleaning procedures. Your employees are working in close, confined spaces because of— for example, if you're in a fast food restaurant, your cook is close, your person that's at the window is close, your cashiers are close. Everybody's interacting under the same umbrella. You know, one of the things that I've learned over the last couple of weeks, you know, the media is focused on one industry, which is, you know, the meat processors. But Quietly, Ford opened a plant and had to close it because of COVID-19 exposure pretty quickly. So I don't think that there's a— the cream that's rising doesn't have a particular industry attached to it. So I think that's what I'm trying to say to you, Paul. I think that having the documentation and what I've seen, because I was helping another attorney manage COVID complaint for lack of PPE, one of the things that saved us is that we did a lot of training, or that employer did a lot of training around PPE, around sanitation, around cleaning. And they had the documentation to prove that the employee who made the complaint actually went through training. So I think it is, as Ed said during the presentation, there is a lot more vigilance required when it comes to the documentation of the training. We have another question, you know, if the employee can't disclose that they got a test, can we— how do we protect the other employees? And how do I, you know, if they're working while they're waiting for the test results and we don't know that they had a test result, how do I protect my other employees? I'll answer that. It's the gray area. Would I be right in saying that, Ed?

Well, I think you're still going to have to do your own thing. I mean, we all have to— we have to protect our employees. I think you can ask the question, have you been tested positive for coronavirus? I think you could ask them that question because you are trying to protect your employees. Or have you been exposed to coronavirus? Do you know if you've been exposed to coronavirus or anybody that has coronavirus? I mean, because I'm assuming that's why they're going to do the test, because somebody else might have been— they may have been contacted for the, um, you know, the, um, the contact, uh, and, um, what they call it. Anyway, okay.

Yeah, so the last thing that I want to ask you before we close is about the new OSHA log requirement. Okay, if the employee has informed us or the employee tests positive Do they go onto the log? Do they go onto the same OSHA log that everybody else is on, or are they on the SHARPS log? Where are we putting these folks who have tested positive or are out for surveillance?

Well, once again, the question is, is if we have somebody that is now tested positive for coronavirus, of course, the first thing we're going to do is send them home. And tell them to go see their doctor. And then we're going to contact them and ask them where do they think they got their coronavirus. And of course they may say, well, I got it at the office. And you might say, well, what— who were— was there— were you around anybody that had the virus? Um, and the answer— well, they may say no. Well, now we question— I mean, and we're going to be looking at it. We got to make the determination that the changes that occurred last week in the OSHA guidance towards recordkeeping was the idea that you have to really do an investigation of, is this work-related? Because they're still recognizing that there's a lot of community exposure here. You know, there's a really good chance that they got exposed, they got the virus outside the workplace as opposed to inside the workplace. But they're basically saying you have to conduct your own investigation. You need to determine where did they actually get exposed in the workplace. So the question is, have you been exposed to anybody that had the virus at the work that you're aware of? Of course, at the same time, you're going to be looking— you're going to be looking to ask him or her, who were you around? Who were you working around at the time? We might be looking at our video cameras in the plants to see where that person was working and who was around him, identify, because we had to do that contact tracing. We need to notify those people because they need to go they need to go and go home and be gone for 20 or for 14 days to see if they got the virus. So, you know, you got— that's what you're going to have to do. So, uh, the answer— but the answer still is you have to determine if it's work-relatedness. Now, um, it could be, um, and if you determine it is work-related, then it will go on the log, okay? Probably because they got medical treatment. So now, one thing about the other— the other point is that If I'm not determined it's work-related and they are hospitalized, you know, the question because, well, do we have to report that to OSHA? My belief is if the person contracted the coronavirus, they are not going to the hospital until at least a week to 14 days later. And so if you read the OSHA recordkeeping standard on reporting hospitalizations, it basically says you have to— only have to report those that occur within 24 hours of the ill— hospitalized— 24 hours after the incident. Well, this is probably 2 weeks after the incident, so you don't have to— that is not a record. That's not calling in. Now, you still might put that on your log if you determine— you will put that on a log if they're hospitalized because they're going to have days away from work or restricted work, whatever. To all that stuff and have medical treatment. So it's going to go on like that. So you need to be careful. Then of course, if somebody dies and you've determined that it's work-related, uh, then you're gonna— you got the other question is, did it— under the record-keeping standard, you have 30 days. If it occurs beyond 30 days from the time of the incident, you don't have to report it to OSHA, the fatality. So you got to find out roughly when you think he got— he or she got exposed to it, then he was hospitalized. And most likely, like I say, it's going to be like 2 weeks at least before somebody is hospitalized from the— once they get exposed. Uh, and that's why it's unlikely you're going to contact OSHA for hospitalization. Once again, it still goes on the log if it's work-related, but you've got to determine it's work-related. You need to go through that whole analysis just because just because it happened at work doesn't necessarily mean that they didn't contract it someplace else.

Right. And that's— for the question, that's the reason why I'm doing this other course on the questions that we need to ask from a workers' comp standpoint, because really there's two— there's a bunch of different laws that are interacting. We have workers' comp. For those of you who are required in your state to have workers' comp, that's a separate train track that this is on. And then you have the OSHA issue that's on a separate train track. And then you have EEOC and everything else. So there's still different tracks that this can be on. And we have to really be mindful of all the tracks that the person can be on. Jennifer asked the question, the burden of proof is on the employee. And is she right in saying the burden of proof that we're in violation or I'm a whistleblower, I'm whistleblowing about something, The burden of proof is on the employee, but the burden of proof is really on the employer to prove that this is not true.

The employee has to establish a prima facie case that they were retaliated against because they, they exercised some, um, protected activity, you know. So you still have to have to establish that they either complained about something, uh, they participated in an inspection, uh, they re— they reported made a complaint to OSHA, or they made a complaint to their employer, uh, you know, there's a whole series, you know, so you have different retaliation. So, and that, that's the protected activity, and then they had to have an adverse employment action. That's the burden of— that's the burden of proof. Now, the burden of proof varies from OSHA. There's 23 OSHA whistleblower statutes, so, but 11 is the primary one. That's the main one, and probably 95% of the cases are 11. C's. So you have to show that was— but they have a but-for test, which is really the hardest test for the employers— employees, excuse me, the employees to meet. Have to show but for their act, their protected activity was the, was the main cause, was the cause for them being terminated or some adverse employment action. So the burden is on them, and then it shifts if once the, once they, the employee, the person making the whistleblower complaint makes the prima facie case, then it shifts to the employer to show that it had a legitimate non-discriminatory reason for the adverse employment action, right? And once the employer does that, then it shifts back to show the employee— the complaint, whistleblower complaint, has to show that what the employer is saying is their legitimate non-discriminatory reason was really a pretext.

Um, Jennifer, your question, burden of proof, um, that you caught COVID at work, um, during the employer investigation, the investigation is going to reveal which direction the COVID incident happened. So for example, if you're in a building and 200 people inside that building have COVID, the question is going to be, did I get it at work or did I get it somewhere else? But if you're a solo person in a practice, or solo— you're in an office of a dental office, let's say, with 10 people, and there isn't a COVID patient that came in the door, you're following proper PPE, and you ended up with COVID and nobody else in the office has it, an argument could be made, well, maybe you didn't get it there. So it's really going to be really specific to the investigation, really specific to the questions asked, really, really specific to the information and the circumstances around a positive transmission. If you're, you know, it's, it's really hard to answer, and I know it's hard to get clear answers to a lot of these questions, but that's sort of, it's a gray area for sure. Yeah. Okay, so We're going to wrap up. If anybody else has any other questions, pop them into the chat really quickly so we can sort of wrap up and end the call. I really appreciate all of you that participated with us today. It's been a really, real huge pleasure to have Ed here here to answer the questions with us and really to go through the COVID-19 questions. I think it's just been huge for everybody. And so we want to really thank you for—

We're happy to do it. And be safe and be healthy.

Yeah, yeah. And thank you all for joining us today. I will send out the handout. I will also send out a copy of the presentation. And I will also, um, um, checklist. Yeah, the checklist out to everybody. Um, I'll get that out to everybody as soon as we're done with the webinar today. And, um, if you have any questions, please go ahead and feel free to email me. Um, my email is in the registration. Thank you again, Ed. This was, um, quite fun, um, to go through this presentation with you. Thank you.

Great, happy to do it. Take care.

Take care. Bye-bye.