1. Utah OSHA: Workplace Accidents,
Investigations & Citations
Michael A. Zody

2. UOSH Authority
 Federal OSHA Law Allows for States to Enforce
 Utah is “State Plan” State = Utah OSHA (UOSH)
is in the lead
 Utah Occupational Safety and Health Act, 34A-
6-101, et seq.
 Utah Regulations at R614, Occupational Safety
and Health
– General provisions and industry specific provisions
– Incorporated federal standards

3. UOSH Statute
 General Duty Clause, 34A-6-201
– “furnish [employment]…free from recognized
hazards that are causing or likely to cause
death or physical harm …and comply with [all
applicable OSHA laws].”
 Investigations, 34A-6-301
 Citation and Enforcement, 34A-6-302, 303
 Penalties, 34A-6-307

4. Investigation Authority
 34A-6-301
– can enter workplace at “reasonable times”
and investigate, review records, etc….
– if employer refuses, can get subpoena
 R614-1-7
– Provides more detail on inspection process
and rights / obligations of employer

5. Citations and Penalties
 Types and Penalties
– “Other” (than serious), up to $7,000 (usually $500)
– “Serious”: employer knowledge of condition and
substantial possibility condition could result in death
or serious physical harm
• $250 to $5,000
– “Willful”
• $5,000 to $70,000
– “Repeat”
• Up to $70,000
– “Failure to abate or to post”, up to $7,000

6. UOSH Investigators
 Division Director (Louis M. Silva)
 Compliance Mgr (Eldon Tryon)
– 23 total inspectors (up from 19)
• 12 safety inspectors, reporting to Safety
Supervisor (Dan King)
• 11 Industrial Hygienists, reporting to Health
Supervisor (Holly Lawrence)
 UOSH looks to OSHA Field Operations
Manual (FOM) for guidance

7. Inspection Triggers
 Imminent hazard
 8 hour reporting
– Fatalities or disabling, serious or significant injuries
 Employee complaints
 7 day written reports (First Report, Form 122)
– Injuries resulting in medical treatment, loss of
consciousness, loss of work, restriction of work,
transfer to another job
 Programmed high-hazard inspections

8. Before the Accident
 Have a great safety program, of course
 Train and Inspect
 Document it
– Date of training/inspection, topics covered, who
participated
– Even tailgates and seemingly informal training
 Safety Committees
 Audits
– If you do audits, make sure you address action items
– UOSH can ask for audits, unaddressed action items =
willful violations

9. Accidents: What to Do?
 Obviously, priority one is emergency
medical treatment, safety for others
 Did it trigger 8 hour reporting?
– What is serious or significant?
– Consider erring on the side of reporting
• avoids having an unhappy UOSH inspector show
up after the fact, after an employee or other person
reports it
• avoids citation for failing to report and “piling on”
citations

10. Accidents: What to Do?
 Duty to preserve evidence
– “Tools, equipment, materials or other evidence that might
pertain to the cause of such accident [8 hour reporting]
shall not be removed or destroyed until so authorized by
the Labor Commission or one of its Compliance Officers.”
R614-1-5.C.2
 Remote work sites create difficult preservation
issues
 When making 8 hour report, confirm UOSH
expectations on preservation
– Photos of accident scene, the equipment, etc…, preserve
records, preserve equipment

11. Accidents: What to Do
 Affirmative obligation to investigate all
“work-related injuries” R614-1.C.3
 For 8 hour reported injuries, expect an
investigation and make sure safety files
are organized, ready for review
– 300 forms, safety policies, relevant training
records, etc….

12. Inspections
 Assign single point person to each
inspector, stay with inspector
– Ask for credentials and areas inspector will
cover
– Refer questions to the point person, who can
then provide information to inspector
– Employee representative can participate
– Cooperate but do not volunteer or bring up
matters not covered by the question

13. Inspections
 Fully document inspector’s investigation
– second person doing this, while point person
focuses on inspector
– log movements, documents provided
– photograph everything inspector photos
– if providing anything of substance in writing,
have legal counsel review beforehand
– create a “mirror image” file

14. Inspections
 Interviews (avoid retaliation or obstruction)
– Up to employees to agree to be interviewed
– Employees should ask for copies of
statements
– Company can be present for management
interviews
• Take extensive notes of those you attend
• Debrief those you do not attend immediately after if
possible, take notes, focus on what employee told
inspector

15. Inspections
 Preserve trade secrets, secure
confidentiality
 Documentation allows legal counsel to
assist during inspection, to understand
where inspector is going, likely citations
 Inspectors vary in experience and quality
– They can cite inapplicable standards

16. The Close-Out
 Inspector should identify likely citations
and evidence
– Take detailed notes
 Opportunity to provide clarification or
correct errors
 Limit participants, speak with one voice if
possible
– Avoid opening new areas of interest

17. The Close-Out
 Keep door open to providing follow-up
information if you think inspector is wrong,
or more information would defeat the
citation
– Ask to continue the close-out or have a
second close-out

18. The Citation
 Must be issued within 6 months of alleged
violation
 Cover letter and forms give relevant information
 Must abate all those you do not contest
 Contest letter must be received by UOSH by 30th
day
 Can request extension of abatement deadline
 Get legal counsel

19. The Informal Conference
 This is a settlement conference
 Does not delay 30 day contest deadline
 Ask for one and do your best to settle the
citations, no harm in doing so
– Be respectful, pick your team carefully, no hot-heads
 Be prepared to show why the citation,
classification and/or penalty amount is wrong

20. The Informal Conference
 Pontification about your outstanding safety
program, while okay and useful at times, is not
what UOSH is wanting
 UOSH wants to see modified behavior, such as
new policies, new training, etc….
 UOSH is generally willing to cut penalties by half
– Explore getting credit for safety related expenditures,
such as outside training services
 Getting “serious” citations downgraded to “other”
can be hard

21. Settlement Agreements
 UOSH has standard Informal Settlement
Agreement
 Have a lawyer review before you sign
 You typically are agreeing to the fact of at least
one citation, and it can form the basis of a repeat
citation
 UOSH will drop stock terms on occasion

24. Employee Misconduct Defense
 Employer is not liable where
– Has established safety-related work rules
– Adequately communicated the rules
– Took steps to discover non-compliance
– Effectively enforced the rule
 Tough defense to win, but it can be done
– Consistent enforcement of rules is key
– Supervisors cannot be looking the other way or let
people slide on safety rules
– Proof of internal inspections and follow-up helps

25. Hindsight is 20/20 Citation
 R614-1-5.D.3
– Management shall inspect or designate a
competent person or persons to inspect
frequently for unsafe conditions and practices,
defective equipment and materials and where
such conditions are found to take appropriate
corrective action immediately
– Who does your inspections, how often, what
proof do you have and can you show
corrective action?

26. Advance Notice of Inspections
 It is a crime to give “advance notice of any
inspection” 34A-6-307(5)(b)
 Big Branch Mine Indictment
– Alleges mine security guards were trained to,
and did, give warnings over an internal radio
channel upon arrival of MSHA inspectors