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Minimizing OSHA Liability Through (More Than) an Ounce of Prevention

Six practical tips and strategies for employers in virtually any industry

As many employers know, OSHA penalties can be costly. For this and many other reasons, upon receiving an OSHA citation, employers should consider their rights and resist any temptation to simply pay the citation and move on to “more important” things.

But many employers never even receive an OSHA citation. Why is this? Is it luck? Or is it because the employer implemented well-thought and planned systems and strategies specifically designed to promote the health and safety of its workers while, at the same, minimizing if not entirely eliminating OSHA liability and exposure? This article asserts it is likely the latter — and provides six practical tips and strategies that employers in virtually any industry may implement.

Tip 1: Perform a Self-Assessment

It may seem obvious, but the first step to minimize any future OSHA liability is to focus your attention on what OSHA cares about: safety. Take an in-depth look at your organization and assess how you are doing in terms of workplace safety. For example, have you received any OSHA citations? What have you done to prevent future citations? Do you have a comprehensive written safety and health program, and is the program effective? In other words, have your safety policies and procedures been communicated to your employees, and are your employees following them? Has there been an increase or decrease in workplace injuries, if any? These are all critical questions. This is the starting point.

Tip 2: Create and Implement an Effective Safety and Health Program

It is critical that you create an effective written safety program, one that addresses (at a minimum) the safety hazards your employees are most likely to face on a daily basis. Also important is communicating the program policies and procedures to your employees, providing employees with safety training, conducting workplace inspections to ensure compliance, and disciplining employees for any misconduct. Moreover, everything must be in writing, documented, and records must be maintained. This would include, for example, distributing all work rules to employees in writing, maintaining any sign-in sheets generated in connection with any safety training, and maintaining all disciplinary records. Be of the mindset: if it is not written down, it did not happen.

OSHA’s “Safety and Health Program Management Guidelines” (published in 1989) provide further guidance on creating an effective safety plan. In addition, OSHA makes examples of different safety plans, applicable to different types of workplaces, available to the public.

Tip 3: Be Prepared for an Inspection

OSHA inspections are conducted by a compliance safety and health officer (CSHO) and are usually not conducted with any advance warning to the employer. Prior to showing up, the CSHO will have already researched the inspection history of the particular site and reviewed the operations and processes in use and the standards most likely to apply. In short, the CSHO will be prepared — to the extent you can, you need to be prepared too. One way to do this is to designate one employee (most likely, a safety employee) to be the company representative for the inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent “voice” on behalf of the employer.

Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company. It is also important to know and exercise your right to duplicate any tests conducted by the inspector during the inspection and/or to take your own photographs and/or measurements. Also, it is important to take down detailed notes during the inspection, because they may prove critical during negotiation as well as in developing safety programs to avoid potential violations in the future.

Finally, OSHA requires that all employers maintain certain types of records. Make sure these records are in fact maintained and easily accessible.

Tip 4: Know Your Rights and the Process

Having a basic understanding of the OSHA process is critical since many of your rights may be lost if you fail to comply with certain rigid time deadlines. For example, if you decide to contest a citation, you must submit a Notice of Intent to Contest (often called a “Notice to Contest”) in writing to the OSHA area office within 15 working days of your receipt of the citation.  The Notice to Contest must clearly state what is being contested (e.g., the citation, the penalty, and/or the abatement date) and must be made in good faith. If you do not comply with this time deadline, your right to contest the citation will be lost — the citation will be final.

Another important right upon receipt of a citation is to request an informal conference with the OSHA area director. An informal conference must be held within 15 working days of your receipt of the citation.  (This is the same deadline as for contesting a citation.)  It is important to keep in mind that requesting and/or appearing at an informal conference will not extend the time you have to contest the citation.

Informal conferences are popular and may be extremely useful because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations. Reclassification of a violation to a less severe violation can impact not only on the amount you currently pay in penalties, but also on any future penalties. For example, if you later receive another citation for the same initial violation, you will not receive a “repeat” violation (which could cause higher penalties). While it is still technically possible that reclassification of violations may still occur without an informal conference, the informal conference is the most efficient, and often preferred, way to negotiate this.

Tip 5: Evaluate Potential Defenses

It is also important to have at least a basic understanding of certain procedural and substantive defenses to citations. Indeed, some popular defenses include: (1) the wrong employer was cited; (2) unpreventable employee misconduct; (3) vagueness of the standard; (4) no hazard exists; (5) duplicative citations; (6) greater hazard posed by compliance; (7) impossibility/infeasibility of compliance; (8) allocation of responsibility by contract; (9) violation not within the scope of employment; and (10) new citation not “substantially similar” to prior citation (if cited for a “repeat” citation).

The unpreventable employee misconduct defense warrants special discussion. Indeed, if you can establish that an employee’s violative conduct was unknown to the employer and in violation of an adequate work rule which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan, but also communicating the plan to employees and inspecting the site and enforcing the plan.

Tip 6: Take Advantage of OSHA Programs

OSHA offers a number of different programs that may be helpful. For example, participation in a Voluntary Protection Program (VPP) may lead to a decline in injury and illness rates, which may lead to lower Workers’ Compensation premiums and insurance rates. In addition, OSHA’s On-site Consultation Program offers free and confidential advice to small and medium-sized businesses. These services are separate from enforcement and do not result in penalties or citations. Indeed, consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs. No citations are issued and your identity is confidential. However, you will be obligated to correct any serious job safety and health hazards that may exist. Other programs also exist and may be investigated.

Conclusion

As the above should make clear, when it comes to OSHA, it is of critical importance to provide for more than “an ounce of prevention.” By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.

Michael Rubin is special counsel in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He has defended clients in a wide variety of general liability matters, including construction site accidents and environmental claims. A speaker on OSHA compliance, he has completed the Department of Labor’s OSHA-10 construction training. He may be reached at [email protected].

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