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

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If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

On a fatality, it does not matter why you did not do, only what the organization says you do.

You open a business, and you decided to join the trade associationfor your industry. That is a good thing. You can learn about new trends and

INDIANAPOLIS, IN - FEBRUARY 03:  A fan rides a...

(Image credit: Getty Images via @daylife)

ideas. You can stay current on what is going on. You have someone’s speaking for you with local, state and federal governments. Most times being a member of a trade association is a great thing!

You need to be aware though, when the organization creates procedures, guidelines, standards or rules that it says its members agree to abide by. Or you agree to those guidelines, standards or rules by joining.

More so, you should be super aware when you say you work according to those procedures, guidelines, standards or rules. If your marketing program includes your membership and/or adherence to the organization’s guidelines, standards or rules, then you are also going to be held to those guidelines, standards or rules.

Marketing makes promises that Risk Management has to pay for!

This is a tragic case where an employee died and another was seriously injured while re-building a zip line. The trade association was touted by the builder and subsequently by the state as the organization (standards) that had the information needed to build the zip line. However, from the report of the state, which is still being appealed, the builder failed to follow the guidelines to which he said he subscribed.

Here, the trade association had standards for the construction of the zip line. The builder touted his experience as a member of the trade association in selling himself to the owner and as a defense to the state agency. However, the state agency found the builder did not follow the trade association’s guidelines (standards) and used that to prove the builder was wrong.

Do Something

1.     Don’t allow your trade association to box you into a corner. There is always more than one way of doing everything.

2.     Don’t box yourself into a corner with a marketing program that makes promises you do not keep.

3.     Don’t box yourself into a corner by agreeing to a trade association’s rules, guidelines, standards or procedures you don’t intend to follow.

4.     If you do, you better D@#M well follow them.

5.     Don’t play contractor when you should be hiring an engineer.

See State finds violations in zip line investigation after employee fatality.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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