Safety and health — Federal

The federal Occupational Safety and Health Act (OSH Act) was implemented with the goal of reducing workplace injuries, illnesses and deaths. The OSH Act grants the Occupational Safety and Health Administration (OSHA), an agency of the federal government, the authority to create rules, standards and regulations governing workplace safety and health.

While some states have their own  state OSHA plans, others mirror the federal act. Even though very state plan is based on the federal OSH Act, some vary enough to warrant specific attention to each plan when setting up a safety plan, dealing with inspections and responding to citations.

Coverage

The OSH Act’s broad coverage includes nearly all private-sector employers and their employees. Certain employers and employees are, however, exempt from coverage.

Employers covered 

The OSH Act extends broad coverage to nearly all private-sector employers. This includes employers across various fields and industries, including religious employers to the extent that their workers are employed for a non-religious purpose.

The limited exemptions from the OSH Act coverage include:

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• state and local government employers

• the self-employed

• farmers who do not employ workers outside of their immediate family.

Employees covered 

The OSH Act’s broad coverage extends to nearly all private-sector employees. This includes both executives and managers. In most circumstances, however, coverage does not extend to employees whose working conditions are regulated by other provisions of federal law, such as:

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• mining workers

• certain truckers and transportation workers

• atomic energy workers.

Multi-employer workplace liability  

In several industries, there are situations where multiple employers perform work or are otherwise affiliated with a single worksite. One common example of a multi-employer worksite is a construction project where a general contractor and numerous subcontractors all work at the same worksite. To address safety and health violations on multi-employer worksites, OSHA, with the help of the federal courts, has developed the multi-employer worksite doctrine, which sets forth the circumstances under which more than one employer may be cited for a hazardous condition at a worksite that violates an OSHA standard.

OSHA recognizes the following four circumstances where an employer can be held liable under the multi-employer worksite doctrine:

1. The employer causes the hazardous condition that violates the OSHA standard (creating employer).

2. The employer’s own employees are exposed to the hazard (exposing employer).

3. The employer is engaged in a common undertaking on the same worksite as the exposing employer and is responsible for correcting a hazard (correcting employer).

4. The employer has general supervisory authority over the worksite, by contract or by the exercise of control in practice, including the power to correct safety and health violations itself or to require others to correct them (controlling employer).

Of these four categories of employers who can be liable for an OSH Act violation at a worksite, the requirements imposed on the controlling employer (also referred to as the premises owner) has been the subject of the most discussion by OSHA and the courts. Significantly, the controlling employer has a lesser duty to exercise reasonable care than is required of an employer with respect to protecting its own employees. Various factors affect how frequently and closely a controlling employer must inspect the worksite to meet its standard of reasonable care, including:

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• the scale of the project

• the nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses

• the controlling employer’s knowledge about the safety history and safety practices of the employer it controls and about that employer’s level of expertise.

More frequent inspections are typically needed if the controlling employer knows that the other employer has a history of noncompliance or if the controlling employer has never worked with the other employer and does not know its compliance history. Less frequent inspections are appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. A high level of compliance by the other employer is an important indicator of effective safety and health efforts. Other important safeguards for controlling employers include the use of an effective, graduated system of enforcement for noncompliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.

Employers affiliated with a multi-employer worksite should take steps to limit their OSH Act liability for injuries on the worksite. Suggested steps include the following:

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• drafting unambiguous contract provisions that clearly allocate responsibility for safety and health compliance at the worksite

• investigating the safety and health history and competence of other employers at the worksite

• routinely inspecting the worksite to ensure OSH Act compliance and immediately correcting any potential hazards

• implementing an effective system for promptly correcting hazards (designating a specific individual employed by the contractor to address and resolve safety issues)

• enforcing the contractor’s compliance with safety and health requirements with an effective, graduated system of enforcement (a system that provides for warning, penalties and, ultimately, termination of the contract for safety violations) and follow-up instructions.

Employer requirements

Covered employers must adhere to a number of general requirements and specific recordkeeping and reporting requirements in order to comply with the OSH Act.

General requirements 

Employers are generally responsible for the following under the Occupational Safety and Health Act:

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• meeting the general duty responsibility to provide a workplace free from serious recognized hazards

• keeping workers informed about work place hazards to which they may be exposed

• complying with applicable standards, rules and regulations

• employers with hazardous chemicals in the workplace must have a written hazard communication program, including training and proper safety data sheets

• familiarizing themselves with mandatory OSHA standards

• evaluating workplace conditions for OSHA compliance

• minimizing or eliminating potential hazards

• providing OSHA compliance officers with required information and contact designations when requested

• not discriminating against employees who properly exercise their rights under the OSH Act

• correct citations within the prescribed period and submit abatement verification when required

• providing employees with safe, properly maintained tools and equipment, including personal protective equipment and making sure that employees use this protective equipment

• establishing and updating operating procedures and communicating these operating procedures to employees

• providing medical examinations when required

• providing safety training in a manner that can be understood by the potentially exposed employees and using color codes, posters, labels or signs to warn employees of potential hazards

• complying with OSHA recordkeeping and reporting requirements (detailed in the next section)

• posting the OSHA “It’s The Law” poster at a prominent location within the workplace

• posting OSHA citations and abatement verifications at or near the worksite involved

• providing employees, former employees and their representatives access to the Log of Work-Related Occupational Injuries and Illnesses

• providing employees and designated others access to employee medical records and exposure records

• report to the nearest OSHA office all work-related fatalities within eight hours, and all work-related inpatient hospitalizations, all amputations and all losses of an eye within 24 hours. 1-800-321-OSHA (6742); TTY 1-877-889-5627.

Recordkeeping 

All covered employers are required to keep records of occupational deaths, injuries and illnesses and to make certain reports to OSHA. Smaller employers (with 10 or fewer workers) and employers who have establishments in certain retail, service, finance, real estate or insurance industries are not required to keep those records. Covered employers, however, must report any occupational fatalities or catastrophes that occur in their establishments to OSHA, regardless of their recordkeeping obligations, and they must participate in government surveys if they are asked to do so.

Reporting fatalities and multiple hospitalization incidents  

Employers are required to report the death of an employee from a work-related incident within eight hours of the occurrence. Additionally, work-related incidents causing in-patient hospitalization, amputation or eye loss must be reported within 24 hours. Such reports must be made by telephone to the nearest OSHA area office or by calling the OSHA toll free central reporting number:

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• (800) 321-OSHA

The Region 8 office can be reached at:

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•  (720) 264-6550

Note: If the relevant office is closed or the employer is otherwise unable to speak to a person at the office, the employer must use OSHA’s central reporting number to report the accident. The employer may not report the incident by leaving a message on an office’s answering machine, faxing the office or sending an email. If the employer does not learn of the incident right away, it must make the report within eight hours of the time the employer learns of the incident.

For each fatality, and otherwise mandatory reporting incident, the employer must provide OSHA with all the following information:

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• the name of the company

• the location of the incident

• the time of the incident

• the number of fatalities or employees suffering a reportable injury

• the names of any employees suffering a fatality or reportable incident

• the company contact person and his or her phone number

• a brief description of the incident.

Recordable injuries

In addition to reporting fatalities and in-patient hospitalization, amputation or eye loss , employers not excluded from the recordkeeping obligation must also prepare and maintain records of “recordable” injuries and illnesses. An injury or illness is “recordable” and records must be kept if:

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• the incident is work-related

• the incident is a new case

• the incident results in one of the following:
  • a death
  • days away from work
  • restricted work or transfer to another job
  • medical treatment beyond first-aid
  • loss of consciousness
  • a significant injury or illness diagnosed by a physician or ­– other licensed healthcare professional
  • a needle stick injury or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material
  • medical removal under the medical surveillance requirements of an OSHA standard 
  • hearing loss
  • exposure to and subsequently infected with tuberculosis within the workplace.

Within seven calendar days of receiving information that a recordable injury or illness has occurred, the employer must enter information regarding the incident on OSHA Form 300 (injury and illness log) and must complete OSHA Form 301 (incident report). At the end of the year, employers must review the injury and illness log to verify its accuracy and summarize it on OSHA Form 300A. The Form 300A must be certified by a company executive and posted for three months, from February 1 to April 30 of the following calendar year. Employers must retain all of these forms for five years following the calendar year to which they relate and each of the forms can be obtained at:

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• https://www.osha.gov/pls/publications/publication.html

In January 2019, OSHA implemented a new rule requiring employers with 250 or more employees to submit injury and illness reports – generally found on Forms 300, 300A and 301 – electronically. OSHA intends to place the data from these reports into a searchable online database. Collection of calendar year 2018 information from the OSHA Form 300A began on Jan. 2, 2019. The deadline for electronic submissions was March 2.

Anti-retaliation protections

The final rule regarding submitting injury and illness reports electronically also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

The flowchart on the following page is useful for determining whether an injury is recordable:

Is an injury recordable? 

Exposure to toxic materials  

Records of exposure to potential toxins and related medical records must be kept for the duration of the person’s employment, plus at least 30 years. Employees exposed to potential toxins must be granted access to these records. All medical exams must be treated as confidential and kept separately from the employee’s general personnel file.

OSH Act standards 

The OSH Act has two sources of standards that regulate workplace safety:  the General Duty Clause and specific safety standards.

The General Duty Clause 

The statute states: 

"Each employer shall furnish to each of its employees employment and a place of employment that are free from recognized hazards, which are causing or are likely to cause death or serious physical harm.

If the workplace condition under investigation does not violate a specific safety standard established by OSHA, OSHA will then try to see if it can demonstrate a violation of the General Duty Clause by showing that there was a recognized hazard that was causing or likely to cause serious physical harm. Additionally, even if an employer has not discovered a particular hazard, the hazard may be considered “recognized” for the purposes of the General Duty Clause when its existence and means of correcting it are known in the employer’s industry."

  To establish a violation of the General Duty Clause, OSHA must be able to prove:

• the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed

• the hazard was recognized

• the hazard was causing or was likely to cause death or serious physical harm

• there was a feasible and useful method to correct the hazard.

The specific standards 

OSHA has issued hundreds of safety and health standards for specific workplace hazards, which require employers to maintain conditions and practices appropriate to protect employees. For instance, OSHA has issued standards that require employers to provide proper personal protective equipment to employees at no cost, with a few exceptions. The limited exceptions to this statute include ordinary safety-toed footwear ordinary prescription safety eyewear, logging boots and ordinary clothing and weather-related gear. The standards are separated into two categories: construction and general industry.

Employers must familiarize themselves with applicable standards and ensure compliance with such standards. Some examples are listed herein as well as a link to the complete index of applicable regulated subjects.

Employers are encouraged to consult with a Certified Safety Professional (“CSP”) or other qualified safety professional familiar with the employer’s type of work to audit the workplace to see if there are safety hazards and identify possible solutions. This consultation will hopefully yield a safer workplace with fewer injuries and will also demonstrate a commitment to safety that will be viewed positively by OSHA during an inspection and afterwards during the negotiations leading to a resolution if citations for safety violations were issued. Assessments performed by a CSP or safety professional may be discoverable during the litigation process. That said, the consultation should only occur if there is indeed the commitment to correct, on a reasonable basis, the hazards identified by the consultant. 

Examples of specific subjects regulated

OSHA has issued standards covering a multitude of workplace hazards. Although this list is not intended to be exhaustive, some workplace hazards to which OSHA has issued specific standards include:

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• toxic substances

• harmful physical agents

• electrical hazards

• machine hazards

• fall protection

• workplace sanitation

• bloodborne pathogens

• equipment, tool and machine guarding

• hazardous waste

• infectious diseases

• fire and explosion hazards.

The complete index for these specific regulations may be found at:

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• https://www.osha.gov/laws-regs/regulations/standardnumber /1910/1910.119AppA

Variances to the standards

At the request of an employer, OSHA may grant permission to deviate from the requirements or time frame of a standard by issuing a variance. Variances may be temporary, permanent or experimental, depending on the circumstances. A temporary variance is designed to provide an employer time to come into compliance with the requirements of an OSHA standard subsequent to the effective date of the standard. A permanent variance authorizes an alternative to a requirement to an OSHA standard as long as the applicant’s employees are provided with employment and a safe and healthy workplace. An experimental variance may be issued when OSHA determines that an experiment is designed to demonstrate or validate new and improved technology to protect employees.

Employers must meet specific requirements in order to ask OSHA for a variance. For instance, where a temporary variance is sought from a newly issued standard, the employer must demonstrate that it cannot fully comply with the effective date due to a shortage of materials, equipment or technical or professional personnel. Where a permanent variance is sought from the requirements of a standard, the employer must demonstrate that its alternatives provide employees with protection at least as effective as the protection provided by the standard.

Hazard communication

If any of the chemicals used in the workplace are on OSHA’s hazardous chemical list, then the employer must meet OSHA’s hazard communication standard. Employers are required to train their workers who may be exposed to hazardous chemicals (under normal operating conditions or in foreseeable emergencies) on the label elements and the safety data sheets format. The purpose of this training requirement is to ensure workers have enough information to protect themselves from chemical hazards. Many businesses are surprised to find themselves on the list through their cleaning products. For instance, companies that use ammonia, bleach, lime-a-way or most stainless steel cleaners would fall within the standard’s scope. Hence, this standard applies to most businesses. Under the standard, an employer must develop a written hazard communication program, maintain  safety data sheets, meet certain labeling requirements and give employees hazard communication training.

Employers are required to have updated alternative workplace labeling and hazard communications programs in place, as needed. Additionally, training programs are required for any newly identified physical or health hazards. Details on the hazard communications requirements are provided on the OSHA website at:

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• https://www.osha.gov/dsg/hazcom/index.html  

and a fact sheet on specific training requirements can be found at:

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• https://www.osha.gov/Publications/osha2254.pdf

Other implications of OSHA standards

In addition to OSHA liability, failure to comply with OSHA standards could be used as evidence of negligent or reckless conduct. Therefore, failure to comply with specific standards could expose employers to civil liability and even criminal liability. When entering into any agreement with OSHA pertaining to the resolution of citations, employers should seek an “exculpatory clause” to be included in the agreement. The clause contains language that the employer and OSHA agree that the contents of the agreement are not applicable in any other proceeding or to be used by any other party. The goal of the clause is to reduce the risk of the language in the agreement being used against the employer as an admission in other lawsuits such as a workers’ compensation or third-party liability claims. 

Inspections

OSHA compliance officers are authorized to conduct on-site inspections and interviews to determine whether an employer is in compliance with the OSH Act. OSHA inspections typically include four stages:

1. presentation of inspector credentials

2. opening conference explaining the reason for the inspection as well as the purpose, scope and procedure of the inspection

3. inspection walk-around

4. closing conference discussing hazardous conditions and potential violations in the workplace as well as informing the employer of its rights and obligations.

Preparing for and responding to an inspection

Preparation for an inspection should happen months or years prior to the arrival of an OSHA Inspector on the premises. A thorough and complete commitment to safety will create an environment in which an employer feels prepared during any inspection. It is important to remember the following two points throughout the inspection process:

1. The inspection is essentially adversarial; OSHA is combing the worksite to look for safety hazards that violate either a specific safety regulation or the General Duty Clause.

2. During an inspection, the employer's representatives should understand their rights during the inspection and maintain a professional demeanor throughout.

With these points in mind, the employer should implement a pre-planned response strategy that should be reviewed by and shared with key employees, those who will responsible in the event of an inspection. The response should be planned in such a way so as to reduce the risk of potential citations and fines.

Throughout this entire process, the employer should be sure to let the inspector know that the company is willing to receive input from the inspector because of its complete commitment to safety.

The response plan should include all of the following steps:

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• Plan on whether or not to allow OSHA to enter without a warrant. OSHA may only legally enter the premises with a warrant in order to perform a search. OSHA rarely arrives with a warrant, so the employer must decide whether to require the inspector to obtain a warrant before entering the premises. If the employer decides to make OSHA obtain a warrant, they will almost certainly do so. If an employer determines a warrant should be issued before allowing an inspection, the employer should convey this requirement in a professional fashion the inspector.  Inspectors may try a variety of approaches to convince an employer a warrant is not necessary or required; employers should assess each inspection to determine the appropriateness of a warrant requirement.

• During the Opening Conference, the inspector will explain the purpose and scope of the inspection, including whether the inspection is to be a "wall-to-wall" inspection or an inspection of a more limited scope. A private room nearest the entrance is a good location for the Opening Conference. During this initial meeting, come to an agreement as to which areas will be viewed and then outline the paths to those areas.

• If the inspector requests documents, like the OSHA logs, bring copies to him or her to review. Do not take him or her to the place where the logs are maintained. The plan should be that the inspector sees as little of the premises and as few of the employees as possible. Under a doctrine known as the "plain view" doctrine, an inspector can investigate potential hazards (and issue citations) within the plain view of where an inspector has a right to be or from where an employer allows the inspector access.

• Plan to have several trained responders act as the employer’s representatives during the entire inspection. The inspector should never be unaccompanied while on the premises. The citations will involve work conditions observed by the inspector, thus the employer’s selected employees who are responsible in the event of an inspection, need to know exactly what the inspector saw in order to respond to any potential citations.

• Plan to have those selected employee(s) keep a detailed log of the times and routes of the inspection. If the inspector takes a photo or video of something, those selected employee(s) should try to immediately replicate the photo or video. It is recommended that the selected employees(s) have a hand-held Dictaphone into which he or she can narrate what is happening, which can then be typed up later so that the employer knows exactly what occurred during the inspection.

• During inspections, inspectors are allowed to question hourly employees without a representative of the employer present. It is permissible to inform the employee that he or she does not have to agree to the interview with the inspector. When informed of their rights, employees should be ensured that they have a right to speak with the inspector or choose to not speak with the inspector.  Regardless of the employee's choice, no retaliation against the employee will occur and no additional benefits will be provided.

• After the inspector completes his or her interview, the employee(s) who are responsible during inspections should meet with the interviewed employee and ask if that employee will repeat what he or she said to the inspector. The employee should be told that he does not have to share the information but that the employer simply wants to know what the inspector knows in order to be able to identify any potential safety concerns and respond to any citations as thoroughly as possible.

Employers are not required to permit interviews with management or supervisory personnel whose remarks are considered binding upon the company. It is extremely important that management and supervisory personnel are accompanied by either the company’s attorney or an HR representative during any interviews with the OSHA inspector. Where employers do not cooperate with requests for interviews and/or records, OSHA may issue subpoenas to compel investigatory interviews and/or production of records.

Violations  

Violations of the OSH Act subject employers to the risk of civil and criminal penalties. The amount of each penalty is proposed by OSHA and depends on the nature of the corresponding violation. Additionally, the Department of Justice may bring a criminal action against an employer in cases of willful violations leading to death and in cases of specific misconduct in dealing with OSHA. Employees are not subject to penalties for violations of the OSH Act. Rather, employers are responsible for ensuring employee compliance.

OSHA citations and penalties

OSHA is authorized to propose penalties for violations of standards, regulations or of the general duty to provide a workplace free of recognized hazards. The amount of a penalty varies depending on the nature of the violation and may be reduced from the statutory maximum depending on the circumstances. Penalty amounts are adjusted annually for inflation each January. Violations and the corresponding penalties fall into the following general categories under the OSH Act.

1. De minimis violations - This category includes violations which have no direct or immediate relationship to safety or health. For violations of this type, no penalty is assessed and no citation is issued; the employer may receive a notice of de minimus violation.

Example 1 -  Where a standard allows 12 inches as the maximum distance between ladder rungs and a ladder is discovered to rungs that are 13 inches apart. 

Example 2 -  Where a standard requires a mechanical press be inspected and tested at least weekly but the machinery is seldom used, inspection and testing prior to each use will suffice and is adequate to meet the intent of the standard.

2. Other-than-serious violations - This category includes a violation of OSHA’s rules that would probably not cause death or serious physical harm, but which would have some direct, negative relationship to worker health and safety. Each other-than-serious violation may carry a penalty of up to $13,494.

Example - A Clorox bleach bottle is missing its label in a wet room in a manufacturing plant. It was not removed but simply fell off due to the wet conditions in the room, which must be hosed down daily. It is on a shelf next to three other bottles of the same common, household product whose labels are intact. It is obvious that it is a bottle of the same product to the average observer and so would not likely cause serious harm. OSHA agrees to issue the violation as “other-than-serious.”

3. Serious violations - A violation of OSHA’s rules that probably could cause death or serious injury. Each serious violation may carry a penalty of up to $13,494.

Example - An employee is working on scaffolding high in the air without being “tied off” and with some railings missing.

4. Willful violations - To be “willful,” a violation need not be committed with a bad purpose or evil intent. The employer need merely be actively aware that its actions do not properly comply with the Act or that a condition hazardous to its employees exists and knowingly or intentionally fails to do anything about it. Each willful violation may carry a penalty of up to $134,937 with a minimum penalty of $9,285. Additionally, a willful violation, resulting in the death of an employee, may expose employers to criminal liability.

Example - The employer is aware that carbon monoxide (CO) leaks out of its combustion chamber from time to time near where employees work, that the level of CO it is emitting exceeds OSHA’s allowable limits and that carbon monoxide is hazardous. Workers have gotten nauseous and lightheaded from working in that area and have reported their symptoms to the employer. The employer intends to fix the hazard, but a great deal of time passes and the employer never quite gets around to doing anything about it. The violation may be classified as  willful because the employer knew about the hazard and failed to remedy it.

5. “Repeat” violations - A repeat violation occurs when an employer is found to have violated a standard for which it had been cited at any of its work sites within five years of the date the first citation became a final order or the abatement period ended, whichever is later. To qualify as repetition, the violation must be a legitimately new violation of the standard. This would not apply if the original violation simply were never abated as required, that would be called a “failure to abate” violation (see below). Each repeat violation may carry a penalty of up to $134,937. 

Example - OSHA standard requires machine guards on all stationary machines with rotating saw blades. Employer is cited in 2017 for failing to have machine guard on one of its table saws. Two years later, employer is cited for repeat violation of the machine guard standard because it failed to have machine guard on one of its table saws in another facility.

6. “Failure-to-abate” violations - This category applies where employer fails to correct cited violations by the abatement deadline. Each violation that an employer fails to correct may carry a penalty of up to $13,494 for each day beyond the abatement deadline that the violation is not corrected.

7. Violating posting requirements - Violations of posting requirements may carry a penalty of up to $13,494.

Amount of mandatory penalties

For serious violations and posting violations, OSHA must impose a civil penalty against the employer. For willful violations, OSHA must impose a penalty of not less than $ $9,639for each violation.

Discretionary penalties

For non-serious violations, OSHA has the discretion not to assess a penalty against the employer. Indeed, OSHA has defined certain circumstances where no penalty will be assessed for a non-serious violation. OSHA has the same discretion for repeated violations and failure to correct violations, but, as a practical matter, will almost always impose a civil penalty

OSHA may reduce the amount of a penalty depending on the circumstances. Additionally, OSHA will not propose a penalty in situations where the penalty is reduced to below $100.

The factors used by OSHA to reduce penalties are: 

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• the size of the employer’s business

• the employer’s good faith as determined by efforts to comply with the OSH Act, such as cooperation with OSHA personnel, quality of safety programs and diligence in correcting hazards

• the employer’s history of previous violations

• the gravity of the violation when the alleged violation is serious as determined by the number of employees exposed to the hazard, the frequency and duration of these exposures and the risk of death or serious injury.  

Criminal penalties

The OSH Act authorizes criminal penalties, including fines and jail time, for:

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• willful violations leading to death

• falsifying records, reports or applications to OSHA

• interfering with a compliance officer in the performance of his or her duties.

Criminal convictions under the OSH Act carry up to six months of imprisonment for a first offense or up to one year for subsequent offenses.

Most frequently cited violations

Periodically, OSHA issues a list of the top 10 most frequently violated standards following inspections of worksites by its personnel. OSHA publishes this list to alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. For the fiscal year ending September 30, 2018, the top 10 list of violations was:

1. fall protection (construction)
2. hazard communication
3. scaffolding (construction)
4. control of hazardous energy (lockout/tagout)
5. respiratory protection
6. ladders (construction)
7. powered industrial trucks
8. fall protection - training requirements
9. machinery and machine guarding
10. eye and face protection (construction)

Abatements

It is quite common that the violation observed by the inspector can be fixed or abated right then and there (for instance, coil the hose thought to be a tripping hazard, put a cover on to an electrical panel, etc.). If the employer can fix the situation immediately – do it. At the closing conference, there is often discussion about what the inspector thinks were violations and possible corrections or abatements. Abatements with abatement dates may also be mentioned in the citation, which can be issued anytime within the six months following the closing conference.

Promptly after the closing conference and again promptly after the receipt of the citation, employers should evaluate whether to complete the abatements. Completing abatements is essentially an admission that there was a problem but not necessary an admission of a violation of a standard. It is also further evidence of a commitment to safety and may be helpful in resolving the citation at the informal conference discussed herein.

If an employer generally agrees with the citation but cannot meet the abatement deadline in the citation, the employer can file a petition for modification of the abatement, which must be filed in writing with the area director no more than one working day after the original abatement date; late filed petitions must include a statement explaining the exceptional circumstances that resulted in the late filing.

Contesting a citation

If an employer disagrees with some aspect of an OSHA citation, it can invoke an appeal process to challenge the citation by filing a “notice of contest” within 15 working days from the date the employer receives the citation. There is no specific format for the notice of contest and a letter to the Region 8 area office and/or the address listed on the citation is adequate. The employer should be very careful to ensure that the office receives the letter within the deadline. The letter should state that the company is contesting both the citation and the proposed fine so that it is not deemed to have waived an argument about the fine. The letter may be withdrawn at any time while the informal process is underway. With any settlement resolution, the employer should try to be certain that the settlement agreement includes what is called an “exculpatory clause.”  The clause contains language that the employer and OSHA agree that the contents of the agreement are not applicable in any other proceeding or to be used by any other party. The goal of the clause is to reduce the risk of the language in the agreement being used against the employer as an admission in other lawsuits such as a workers’ compensation or third-party liability claims.

The informal conference

During the 15 working day period, the employer can request an informal conference with the area director, in an effort to reach a compromise on the citations before proceeding to litigation. The informal conference will generally be conducted at an OSHA office. This informal conference is the employer’s opportunity to show why the citation is not factually or legally correct. In developing its response, the employer should be mindful that OSHA needs to prove that the work condition cited constituted a significant risk of actual harm to its employees, not a theoretical possibility. At the informal conference, employers should present in an organized and understandable way why the inspector was incorrect in how he/she understood the situation of the risk of harm. Employers should emphasize the abatement efforts and costs of abatement that were undertaken and completed before the citation was issued and again before the informal conference was started. After the facts are reviewed, there will be a negotiation over which violations are still maintained, which are dropped, modififed, and what the proposed penalties will be based on the new information received.

The formal process

If no compromise is reached (or if the employer decides to forego the informal conference), the employer must file the written notice of contest to commence the appeal process. Once the notice of contest is filed, OSHA refers the matter to the Office of Solicitor for the U.S. Department of Labor (DOL) and to the Occupational Safety and Health Review Commission (OSHRC) – the tribunal that adjudicates the contested citation. The case proceeds through an administrative litigation process that provides for most of the usual civil discovery options and concludes with a hearing much like a trial before an administrative law judge (ALJ) who will decide the case. The ALJ’s decision is subject to review by the OSHRC (if requested) and the ALJ’s decision can be appealed to the Tenth Circuit Court of Appeals in Denver.

Settlement continues to be an option at all times during this process.

Employer defenses

Employers may raise defenses to citations, penalties, abatement deadlines and methods of abating violations. When challenging an alleged violation, the employer should raise all applicable defenses.

The following list describes some of the defenses commonly asserted by employers in response to OSHA citations:

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• No violation - This defense applies when the employer has not violated the applicable standard, general duty or regulation alleged in a citation.

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• No hazard - This defense applies when a violation occurs but no hazard resulted from the violation. Accordingly, it applies in situations where either no employee was exposed to the condition or the employer reasonably had no knowledge of the violation.

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• De minimis violation - This defense applies when a violation occurs but the violation did not create a hazard or did not otherwise compromise the health and safety conditions of the workplace. Additionally, this defense applies to minor, technical violations of the OSH Act when the employer provided adequate alternative protections. There is no penalty for a de minimis violation.

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• Defenses related to the applicable standard - An employer may have a defense when the applicable standard violated was ambiguously worded, improperly issued or non-binding. When challenging the wording of a standard, the wording must be so ambiguous that a reasonable person would not know exactly what type of conduct the standard prohibits. Moreover, a standard is considered non-binding when it amounts to a mere suggestion rather than a requirement.

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• Feasibility of compliance - An employer may have a feasibility of compliance defense where a standard, regulation or general duty cannot be met by known, available or feasible means of compliance. The feasibility of compliance defense also applies where the abatement deadline or method is unreasonable. However, defenses challenging the feasibility of compliance are generally difficult to establish. In order to assert this defense, an employer must demonstrate that it applied all alternative means of correction that are known and feasible. The employer must also demonstrate that it is not lagging behind industry standards of compliance. The cost of compliance is not a feasibility defense except in extreme circumstances.

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• Employee misconduct - An employer may have a defense where noncompliance resulted from employee misconduct. In order to use this defense, the employer must establish each element of a four-part test:

1. the employee’s actions were contrary to documented company policy
2. the employee was adequately notified of the policy
3. the employer took reasonable steps to discover violations of the policy
4. violations were handled with documented and consistent discipline.
5. other words, it is best to demonstrate that the employee did not follow previously established and enforced work rules or otherwise acted in an unpredictable, peculiar manner. Additionally, the employee’s misconduct must be reasonably unanticipated, meaning that the employer must have a record of disciplining previous violators. Ultimately, employers must demonstrate rigorous enforcement of safety rules and adequate employee safety training to assert the employee misconduct defense.

Miscellaneous defenses

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• A citation was not issued within 180 days.

• A citation resulted from an illegal inspection or OSHA’s evidence of a violation is unconvincing or not credible.

• The employer cited did not create the hazard, had no power to correct it or had no employees exposed to it.

• OSHA does not have jurisdiction over the condition cited.

• The standard cited is inapplicable to the situation at hand or the industry being regulated.

Workplace violence regulations

Incidents of workplace violence create potential liability exposure for employers. Employers may also suffer significant costs resulting from lost productivity. Thus, it is prudent for employers to take preventative steps to minimize the risk of violence in their place of work. This section outlines the various risks of liability presented by workplace violence and various strategies to minimize incidents of workplace violence.

OSHA has not issued any regulations specifically addressing workplace violence. The agency considers workplace violence a hazard and has issued guidelines aimed at reducing workplace violence. OSHA may rely on these guidelines to issue citations for incidents of workplace violence under the General Duty Clause.

The following are some of these OSHA issued guidelines aimed at minimizing violence in the workplace:

• Management commitment and employee involvement - OSHA recommends a team-oriented approach incorporating both management and employees into committees aimed at identifying and minimizing risks of violence in the workplace. These committees should consult employees to identify security concerns, report incidents of violence and recognize escalating situations. In addition, OSHA recommends debriefing and medical/psychological counseling for employees involved in violent incidents. OSHA further recommends that employers create a comprehensive written program to address workplace violence. Such a program should include a zero-tolerance policy for violence and threats, a no-retaliation policy, a procedure for reporting and documenting incidents and security procedures.

• Worksite analysis - OSHA recommends that employers undertake a thorough analysis of the risks of violence in their place of work. Suggested steps include analyzing prior incidents of violence, contacting other employers within the industry, surveying employees and conducting physical inspections of the premises. When conducting this type of analysis, employers should keep the following in mind: employers who choose to perform a worksite analysis may expose themselves to potential liability when information obtained through a worksite analysis is not acted upon by the employer.

• Hazard prevention and control - Once hazards are identified, OSHA suggests that employers implement mechanisms to prevent and control workplace incidents. Specific hazard prevention and control mechanisms include the installation of alarms and other security devices, as well as administrative procedures for responding to incidents. Employers should implement both immediate response procedures - to cool-off escalating situations carefully - and long-term response procedures consisting of discipline and investigation.

Safety and health training

OSHA recommends that employers educate workers to the risks of workplace violence and the specific policies and procedures in place to minimize these risks.

Recordkeeping

Employers should maintain records of incidents of violence and compliance with violence reduction programs for five years from the calendar date to which these records relate.

Although OSHA has not issued regulations dealing specifically with workplace violence, some groups have urged the agency to create such regulations. Therefore, OSHA may issue regulations specifically dealing with workplace violence in the near future.