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OSHA can close you down if they do not believe you are able to keep employees safe

Sea World can no longer allow trainers in the water with ORCAs after OSHA Administrative law judge ruling

More than two years ago a trainer at Sea World in Orlando Florida was killed by an ORCA (killer whale in the article). OSHA spent six months studying Sea World and how it dealt with ORCA’s. Sea World appealed OSHA’s ruling, and the administrative law judge followed OSHA’s findings to a great extent.

The basis of the ruling is there must be a barrier between trainers and ORCAs or trainers must be at a greater distance from the animals.

This to some extent will totally change the program that Sea World is so famous for.

Sea World Orlando

The reasoning allegedly behind the ruling was threefold:

·         None of the techniques that Sea World had developed to deal with problems did not work with the ORCA that killed the trainer. These actions included “slaps in the water and other signals devised to bring him under control.”

·         The statements that Sea World argued on ORCA behaviors were not based on science. ORCAs had been involved in four deaths.

·         Sea World had an inclination to blame trainers for problems.

The judge did not agree with the complete report. It lowered the fines substantially and found that Sea World was concerned with employee safety.

Do Something

I’ve said it (written it) dozens of times that litigation rarely puts someone out of business. Sea World is claiming that this will not change its program substantially. However, a federal agency does have a greater opportunity to close you down. This can range from the health department saying your kitchen must be closed or some state agency finding your waterfront to be out of regulation.

Sea World is big enough, has the power ($) to fight the fines and the imposition, to some extent, of the imposed rules.

The bottom line is twofold.

1.   Keeping employees safe must be as important as keeping your guests and participant’s safe.

2.   The battle to remain open is going to be with the government and its agencies in the future.

I’ve said for the past ten years that my practice has evolved from one of litigation prevention to access. Fighting to hold onto the right or opportunity to take people into the woods. This fight is going to be greater in the future than any fight of the past.

See Ruling Puts Distance Between Killer Whales and Trainers

What do you think? Leave a comment.

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OSHA issues $12,000 in fines for Ski Patrollers death to ski area.

While there they, they tack on another $5000 for a hand rail violation..

OSHA issued fines for $12,000 to Wolf Creek Ski Area over the death of one of their patrollers last fall. See Ski Patroller dies in Avalanche at Wolf Creek. If you have a major injury on the job or a death of an employee OSHA will show up and OSHA will fine you. Not help you, not understand what is going on if you are in the recreation business, just fine you.

In this case, they showed up to investigate the death of a ski patroller who died in an avalanche and issued another $5000 fine for a hand rail violation.

The first citation is for allowing an employee to do hazardous work, explosive work, alone. This is a serious violation and carries a $7000.00 fine.

The second citation is the railing citation which is a $5000 and another serious violation.
The third violation is also a serious violation which is allowing the explosives work to be done without a helmet. This also carries a $5000 fine.

I’m not sure what good a helmet is going to do in an Avalanche. I know it won’t do any good if there is an explosion. I’ve read almost 100 avalanche reports and investigations and never saw anything indicating a head injury was a major or contributing factor to the fatality or injury. Sure a helmet might protect you from minor injuries as you are tumbling, but it probably is not going to make a difference in whether you live or die.

If you wish to review the actual citation documents they can be found here.

My Response,

There are some rules that should not be broken no matter who you are or how much education or training you have. More importantly, no matter how short staffed or how much money you might be trying to save. Don’t do explosives work alone.

However, if you read the actual citation you will wonder how wearing helmets would have done anything. Here are the facts as OSHA found them in the OSHA citations.
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I have no idea what the exact cause of death is, however, OSHA would have put that in the report if it concerned a head injury.

At this point in time, between Jackson Hole’s fight (see 20 Year Veteran of Ski Patrol Dies performing avalanche control work) and this one. I would have to advise ski patrollers doing avalanche work to be issued helmets.

OSHA does not say what type of helmet so any ski helmet (Tupperware?) should work. It is stupid, but it will be cheaper until someone really wants to fight OSHA.

However, OSHA is correct, a helmet will stop head injuries, and injuries are as important to OSHA as stopping fatalities. Not a lot, not many, if any but a few.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Changes from OSHA that will affect the Outdoor Recreation Industry.

Working with OSHA is always difficult in our industry because we know the best ways to keep people safe in our situations. However, OSHA regulations sometimes force us to ignore those.

OSHA’s new concern is employers either intentionally or unintentionally encourage employees not to report injuries. In some cases, the medical bills are paid by the employer and not reported. In others the employer through a system of rewards or other ways has created an environment encouraging employees not to report their injuries.

The obvious example is the minor injury and the employer pays for the medical costs out of the company. The programs that will be difficult are those where an incentive program is set up to encourage employees not to get injured at work. The employees take care of their own injuries or just plain do not report their injuries not to lose those incentives, with or without the employer’s knowledge or support.

Either way is a $70,000 fine per occurrence.

See A Conversation With Assistant Secretary for OSHA Dr. David Michaels – What to Do About Safety Incentives?
For more information about OSHA record keeping see Recordkeeping Policies and Procedures Manual or OSHA Recordkeeping Handbook.

The next issue is OSHA is increasing its fine structure. Violating OSHA regulations is going to be more expensive. Violating OSHA regulations two or more times in Five years could be 300% more expensive.

See New campaign launched for harsher OSHA fines, OSHA increases fines for serious violations or OSHA Announces an Increase in Civil Penalties and a Severe Violators Enforcement Program.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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Wow, this could mess up a lot of studies and ideas

It also contradicts to some extent the management theory that all employees want to take advantage of a work injury and sit at home!

Risk and Insurance is reporting that the GAO (Government Accountability Office) found that many employers are failing to report workplace injuries and illnesses. They do so out of fear of increasing worker’s compensation insurance costs.

The study also found that 53% of “health practitioners” had experienced pressure to downplay or not report workplace injuries.

Another issue was employees did not want to report injuries because they felt they would be considered wimps. This issue was appropriately titled the “wimp factor.” I have seen this at numerous outdoor recreation businesses were young and tough is a better “cred” than injured and sitting at home not working.

The article is titled America’s Soft on Safety. The study can be found at Workplace Safety and Health: Enhancing OSHA’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data


OSHA Officially recommending helmets for ski area employees

The Occupational Safety and Health Administration (OSHA) has posted a recommendation on its website for employees of ski areas to wear helmets. The post is:

‘QuickTips’ for ski resort workers to stay safe on the job
In March, a ski patroller died after a fall while on duty in the backcountry of a mountain resort. She was not wearing a helmet. Ski season is here, so OSHA is encouraging ski resort employers and workers, especially ski patrollers, to take the necessary precautions to protect themselves from severe injury while on the job. Personal protective equipment is one of the first lines of defense against injury. OSHA’s Personal Protective Equipment Safety and Health Topics Web page offers information about what standards apply to PPE, what PPE is appropriate for workplace hazards, and ways PPE can be evaluated and improved.

The OSHA post can be found at OSHA Quick Takes for December 1, 2009, Volume 8, Issue 22.