The Occupational Safety & Health Administration (OSHA) enforces safety and health laws at general industry and construction workplaces in most states. The remaining states have enforcement carried out by state agencies (often part of the state department of labor) and may also have state-specific standards that go beyond the federal laws that must be enforced as a minimum level of compliance. Currently, the maximum OSHA penalty per citation is $70,000 (or $70,000 per affected employee in “egregious” cases).
Penalties could go up if new legislation is introduced similar to what was considered last year. That legislation would have hiked the penalty to $150,000 and increased criminal sanctions for knowing violations resulting in death or serious injury of a worker. Even without that legislation, the Occupational Safety & Health Act remains a criminal statute, with penalties possible for fatality cases or cases involving giving false statements or producing false documents.
Inspection and violation Types
OSHA has several different types of inspections:
A programmed inspection is based on the revised site-specific targeting data, or triggered by one of OSHA’s 11 National Emphasis Programs (NEPs) or myriad other regional and local emphasis programs. The NEPs most likely to affect this industry are those that focus on crystalline silica exposure issues, and those involving trenching and excavation.
A fatality/catastrophic event inspection is triggered by a workplace fatality or an event resulting in the hospitalization of three or more individuals.
An imminent danger inspection is usually started when an OSHA representative sees a highly unsafe condition and immediately opens up an inspection (mostly in the construction industry).
The complaint inspection is triggered by an employee complaint or a professional referral. OSHA places greater emphasis on complaints from current employees. The EPA and other federal agencies are now cross-training to recognize non-compliant safety conditions and to notify OSHA so it can inspect.
If OSHA’s compliance officer finds a violation, it can be characterized as:
•repeat — if the same standard was violated by the same company (not necessarily at the same work site) within the previous five years;
•serious — involving a reasonable likelihood of serious injury, and requiring that there be employee exposure to the condition within the previous six months;
•other than serious — usually reserved for paperwork violations; or
or “de minimis” — a technical violation but where equivalent or greater protection was provided through alternate means.
All citations except de minimis count toward the employer’s history of violations and can trigger subsequent repeat violations.
How to act if OSHA arrives
If OSHA shows up, you can demand a warrant. However, this rarely delays an inspection more than a day and can result in being classified as an uncooperative employer, who is ineligible for any “good faith” penalty reductions. A warrant policy should be developed in advance of inspections.
OSHA can also issue subpoenas for documents or to compel testimony via deposition-style interviews before any citations are issued. Any time a subpoena is issued, counsel should be consulted, as this may be a signal that OSHA is considering creating a “significant” case where penalties will exceed $100,000.
With or without a subpoena, review all document production requests and promptly produce mandatory records. For non-mandatory records, consideration should be given as to how the records could be used against the employer (e.g., near-miss accident reports, audit records and disciplinary files that could reveal previous violations) and whether there is a basis for seeking a protective order or other action to quash a subpoena.
When OSHA arrives, learn the reason and scope of the inspection (not all inspections are created equal) and determine if counsel or expert consultants should assist. This is especially important in accident-related investigations, since the potential for additional litigation beyond agency administrative actions may exist, especially if injuries to third-party contractors or members of the public are involved. Remember that photos and videotape can be obtained by the agency and used against you in court. So during an inspection, be cautious not to simply replicate the inspector’s photos if they would document a valid violation.
If the employer’s representative takes notes during the inspection, it is helpful to do so at direction of counsel and label them “Privileged and Confidential” to prevent their discovery in litigation.
If OSHA asks the employer to “demonstrate” how a particular task is carried out, beware! These types of demonstrations — often done while the employer is under stress — can result in citations because normal procedures may not be followed, and safeguards may not be in place if the equipment was not already in operation. Also be cautious about answering questions that could be self-incriminating. No one is required to give a verbal or written statement to OSHA.
Review all programs and documentation regularly to ensure information is current and in compliance with applicable regulations, and that records are not maintained past their legally required retention period.
However, it is recommended that training records be kept for an extended period, as they may have utility in supporting an employer defense of unforeseeable employee misconduct. This affirmative defense, which must be asserted and proven by the employer, requires showing that the company has safety policies in effect; workers are trained on their requirements; the company has a disciplinary program; and the rules are actually enforced. In addition, the employee violating the regulation cannot be a supervisor or other agent of management (e.g., the designated “competent person”). If the affirmative defense is proven, OSHA must vacate the citation.
How to Handle a Citation
If you are cited for a violation, in most states and in federal OSHA cases, you have 15 working days to contest the citation and request an informal settlement conference. Therefore, you must promptly contest all citations to preserve your rights, especially if OSHA cannot schedule a conference promptly. Remember, you are innocent until proven guilty; the agency bears the burden of proof.
Keep in mind that everything said and done during the inspection, any closeout conference and the informal settlement conference is “on the record” and OSHA can make citations worse, as well as give the requested relief. Therefore, it is critical not to self-incriminate.
By following these recommendations, hopefully your OSHA inspection experience will not be painful and you may obtain some helpful information about improving safety and health performance and management at your operations. ET
Adele L. Abrams, Esq., CMSP is an attorney at the law office of Adele L. Abrams PC, where she specializes in safety law. She can be reached at www.safety-law.com.